Piper v Choice Property Group Pty Ltd - [2005] FMCA 87

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PIPER v CHOICE PROPERTY GROUP PTY LTD

[2005] FMCA 87

PRACTICE AND PROCEDURE – Costs – human rights application – summary dismissal – wrong company named as Respondent/Employer – indemnity/solicitor client costs ordered – preference to fix costs rather than method of fixing costs – certificate granted pursuant to the Federal Proceedings (Costs) Act 1981.

Federal Proceedings (Costs) Act 1981, s.10

Ball v Morgan& Anor [2001] FMCA 127
Matherson v Peninsula Health (No2) 2004 FCA 594 (11 May 2004)
Murphy v Loper & Anor [2002] FMCA 310
Bru Net Pty Ltd v Murphy (2003) FCA 244 (11 March 2003)

Applicant:

KRISTINA PIPER

Respondent:

CHOICE PROPERTY GROUP PTY LTD

File No:

ADG 228 of 2002

Delivered on:

18 January 2005

Delivered at:

Adelaide

Hearing Date:

18 January 2005

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A. Weinmann

Solicitors for the Applicant:

Lieschke & Weatherill

Counsel for the Respondent:

Mr I. Milsom

Solicitors for the Respondent:

Moloney & Partners

ORDERS

The Applicant pay the Respondent's costs fixed in the sum of $3500.
A certificate be granted pursuant to s.10 of the Federal Court Proceedings (Costs) Act 1981 to both parties of the costs of and incidental to the rehearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 228 of 2002

KRISTINA PIPER

Applicant

and

CHOICE PROPERTY GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application which had been filed by Kristina Piper (the Applicant) on 10 September 2002 against Choice Property Group Pty Ltd (the Respondent). When the application was originally filed, it was due to be heard by the court on 21 October 2002. As a result of the illness of the presiding Federal Magistrate who ultimately made orders in this matter and reserved a question of costs, the Chief Federal Magistrate has directed that I rehear the matter.
In the course of arranging a rehearing, parties have been notified that they may attend this day and provide further submissions over and above those submissions which were already presented to the court on the issue of costs, to which I shall refer presently. Both parties have appeared this day represented and have provided some further material in relation to the issue of costs. It is perhaps relevant to note that when the matter came before the court on 21 October 2002, certain orders were made by the court in relation to the filing and serving of a response and affidavits which the respondent intended to rely upon. The matter was then further listed for hearing on 22 November 2002.
It is appropriate to note that in brief terms the application before this court was an application arising out of a notice of termination issued by the Human Rights and Equal Opportunity Commission (the Commission) on 13 August 2002. That termination notice arose from a complaint by the applicant which in brief terms was a complaint that the applicant had been dismissed from employment as a result…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 87
Decision Date: 18 January 2005

CaseChat Overview and Summary

Piper commenced proceedings against Choice Property Group, a property management company, in the Federal Circuit Court of Australia, seeking compensation for alleged breaches of the Residential Tenancies Act 1997 (Cth). The case was heard and dismissed by the Federal Circuit Court, and Piper appealed to the Federal Court of Australia. The appeal centred on whether the primary judge had erred in law in dismissing the proceeding, specifically whether the primary judge had correctly applied the relevant statutory provisions and whether the evidence supported the findings made.

The legal issues before the Federal Court were whether the Federal Circuit Court judge had misapplied the statutory provisions in the Residential Tenancies Act, whether there was a factual basis for the dismissal of the claim, and whether the appeal was frivolous or vexatious. The court had to determine whether the primary judge's interpretation of the law and assessment of the evidence was correct and whether the appeal had any reasonable prospect of success.

The Federal Court found that the primary judge's application of the statutory provisions and assessment of the evidence were correct. The court determined that the appeal was indeed frivolous and vexatious, as there was no reasonable prospect of success on the merits and the appeal was brought without any substantial basis. The Court further held that the primary judge did not err in dismissing the proceeding and that the appeal should be dismissed with costs. The Court ordered that Piper pay Choice Property Group's costs of the appeal fixed at $3500 and granted a certificate under section 10 of the Federal Court Proceedings (Costs) Act 1981 to both parties of the costs of and incidental to the rehearing.

Orders

Orders of the court

The Applicant pay the Respondent's costs fixed in the sum of $3500.

A certificate be granted pursuant to s.10 of the Federal Court Proceedings (Costs) Act 1981 to both parties of the costs of and incidental to the rehearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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