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Robinson v Commissioner of Police, NSW Police Force

Robinson v Commissioner of Police, NSW Police Force

Case [2013] FCA 770 6 August 2013

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FEDERAL COURT OF AUSTRALIA
Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770

Citation: Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770

Parties: RONALD SELIG AND JANNA SELIG v WEALTHSURE PTY LTD (ABN 93 097 405 108), DAVID BERTRAM, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH

File number: SAD 11 of 2010

Judge: LANDER J

Date of judgment: 6 August 2013

Catchwords:
COSTS – application for indemnity costs – whether plaintiffs succeeded at trial upon relevantly different case to that advanced with offer to settle – application for Bullock order

PRACTICE AND PROCEDURE – application for leave to enter judgment against bankrupt and in liquidation defendants – application by plaintiffs for stay of orders in their favour pending appeal by defendants

Legislation:
Bankruptcy Act 1966 (Cth), ss 58(3), 82(2)
Corporations Act 2001 (Cth), ss 471B, 500(2), 553, 556, 563A, 1041N(4)
Corporations Amendment (Sons of Gwalia) Act 2010 (Cth)

Federal Court Rules 2011, r 1.04, div 2.3, pt 25

Cases cited:
Bullock v London General Omnibus Co [1907] 1 KB 264
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Fowdh v Fowdh [1993] NSWCA 100
In re Newman; Ex parte Brooke (1876) 3 Ch D 494
Selig v Wealthsure Pty Ltd [2013] FCA 348

Sons of Gwalia v Margaretic; ING Investment Management v Margaretic (2007) 232 ALR 232

Date of hearing: 4 June 2013

Date of last submissions: 5 June 2013

Place: Adelaide (Telephone Link to Brisbane)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 110

Counsel for the Plaintiffs: Mr P Heywood-Smith QC with Mr D Riggall

Solicitor for the Plaintiffs: Radbone and Associates

Counsel for the First and Second Defendants: Mr T Cox

Solicitor for the First and Second Defendants: Cosoff Cudmore Knox

Counsel for the Third Defendant: The Third Defendant appeared via telephone

Counsel for the Fourth Defendant: The Fourth Defendant did not appear

Counsel for the Fifth Defendant: The Fifth Defendant did not appear

Counsel for the Sixth Defendant: The Sixth Defendant appeared via telephone

Counsel for the Seventh Defendant and liquidators of the Seventh Defendant: Mr C Coulsen

Solicitor for the Seventh Defendant and liquidators of the Seventh Defendant: Mills Oakley Lawyers

Counsel for the Eighth to Thirteenth Defendants: The Eighth to Thirteenth Defendants did not appear

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 11 of 2010

BETWEEN:
RONALD SELIG AND JANNA SELIG
Plaintiff

AND:
WEALTHSURE PTY LTD (ABN 93 097 405 108)
First Defendant

DAVID BERTRAM
Second Defendant

RICHARD WILLIAM SPENCER
Third Defendant

SILVANA PEROVICH
Fourth Defendant

MARK RICHARD NORTON
Fifth Defendant

PETER MAURICE TOWNLEY
Sixth Defendant

NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906
Seventh Defendant

NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169
Eighth Defendant

DANIEL GEOFFREY LILLEY
Ninth Defendant

DAMIEN BERNARD…

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.

Continue reading Robinson v Commissioner of Police, NSW Police Force

Details

AGLC: Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770
Case: [2013] FCA 770
Decision Date: 6 August 2013

CaseChat Overview and Summary

The plaintiffs, Robinson and another, sought indemnity costs against the defendants, including the Commissioner of Police, following a trial in which they succeeded on claims of false imprisonment and assault against the police officers. The matter was heard in the Federal Court. The central legal issues before the court were whether the plaintiffs were entitled to indemnity costs despite succeeding on a case that differed from the one they had advanced in an offer to settle, and whether the plaintiffs could be granted leave to enter judgment against the bankrupt and in liquidation defendants.

The court found that the plaintiffs had succeeded on a case that was materially different from the one they had presented in their offer to settle. As such, the court denied the plaintiffs' application for indemnity costs against the first and second defendants. The court also dismissed the plaintiffs' application for leave to enter judgment against the defendants who were bankrupt and in liquidation, as well as their request for an order that these defendants indemnify them against the costs of entering judgment in favour of the other defendants. The court held that the plaintiffs were not entitled to a Bullock order, as their success was based on a different case than the one they had advanced in their offer to settle.

The court ordered that the plaintiffs pay the costs of the first and second defendants for the interlocutory application filed on 29 May 2013 on an indemnity basis. The court also dismissed the plaintiffs' application for leave to enter judgment against the third, fourth, seventh, and eighth defendants. Additionally, the plaintiffs were ordered to pay the seventh defendant's costs for the orders sought in the interlocutory application filed on 26 April 2013 to enter judgment against the seventh defendant. The first and second defendants were to pay the plaintiffs' costs of the proceeding up until judgment, subject to credit for costs incurred in defending the abandoned claim for damages for personal injury. There was no order as to the costs of the interlocutory application filed on 26 April 2013 between the plaintiffs, the first and second defendants, the third and fourth defendants, and the eighth defendant.

Orders

Orders of the court

1. The plaintiffs pay the first and second defendants’ costs of the plaintiffs’ interlocutory application filed on 29 May 2013 on an indemnity basis.

2. The plaintiffs’ application for leave to enter judgment against the third, fourth, seventh, and eighth defendants, be dismissed.

3. The plaintiffs pay the seventh defendant’s costs of the orders sought in the interlocutory application filed on 26 April 2013 to enter judgment against the seventh defendant.

4. The plaintiffs’ application for an order that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants’ costs be dismissed.

5. Subject to the first and second defendants being given credit for the costs incurred in the first and second defendants defending the second plaintiff’s claim for damages for personal injury abandoned at trial, the first and second defendants pay the plaintiffs’ costs of the proceeding:

(a) to 11.00am on Monday, 20 February 2012 on a party and party basis; and

(b) from 11.00am on Monday, 20 February 2012 to judgment on an indemnity basis.

6. There be no order as to costs of the interlocutory application filed on 26 April 2013 as between the plaintiffs, the first and second defendants, the third and fourth defendants, and the eight defendant.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770

Most Recent Citation

Derrick v State of NSW (NSW Police Force) [2020] NSWCATAD 235

Cases Citing This Decision

Crisp v Commissioner of Police, NSW Police Force [2024] NSWCATAD 179
Citation 1 (Para 17)

…e meaning of the Act: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application…
Dezfouli v State of NSW, Justice Health and Forensic Mental Health Network [2024] NSWCATAD 165
Citation 2

…providing “services”: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application…
Dezfouli v Justice Health and Forensic Mental Health Network [2023] NSWCATAD 144
Citation 3 (Para 18)

…providing “services”: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application…
Dezfouli v Justice Health and Forensic Mental Health Network [2022] NSWCATAD 57
Citation 4 (Para 15)

…providing “services”: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application…
Dezfouli v Justice Health and Forensic Mental Health Network [2021] NSWCATAD 362
Citation 5 (Para 16)

…providing “services”: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application…
Storey v Blacktown City Council [2021] NSWCATAD 70
Citation 6 (Para 28)

…nd the regulation of keeping birds and animals under the Local Government Act and Regulations. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail app…
Derrick v State of NSW (NSW Police Force) [2020] NSWCATAD 235
Citation 7 (Para 39)

…The VCAT relied on two decisions of this Tribunal in relation to the above conclusions: Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 and Mariani v NSW Police Force, State of NSW [2013] NSWADT 35. Neither case considered a complaint by a member of the public about a refusal by police to inves…
Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) (No. 2) [2016] FCCA 146
Citation 8 (Para 8)

…2) [2015] FCA 266, Dennis v Chambers Investment Planners Pty Ltd (Administrators Appointed) (No 4) [2014] FCA 784, Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770, Metz Holdings Pty Ltd v Simmac Pty Ltd (No 3) [2011] FCA 1450, Robinson v Kenny (No 2) [2015] FCA 2, Lift Shop Pty Ltd v Easy Living Home Elevators…

See all citing cases →

Cases Cited

Selig v Wealthsure Pty Ltd [2013] FCA 348
Citation 1 (Para 1)

…easons for judgment and made orders in favour of the plaintiffs after a trial on the issues of both liability and damages: Selig v Wealthsure Pty Ltd [2013] FCA 348 (“ Selig v Wealthsure ”). The orders made were: 1.The plaintiffs’ claim against the ninth to thirteenth defendants be dismissed. 2.The plaintiffs hav…
Sons of Gwalia Ltd v Margaretic [2007] HCA 1
Citation 2 (Para 9)

…administration of that company and rank equally with general unsecured creditors: Sons of Gwalia v Margaretic; ING Investment Management v Margaretic (2007) 232 ALR 232 (“ Sons of Gwalia v Margaretic ”).…
Fowdh v Fowdh [1993] NSWCA 100
Citation 3 (Para 16)

…The first and second defendants referred to Fowdh v Fowdh [1993] NSWCA 100 in which the plaintiffs made an offer to settle that they bettered in the judgment after trial. The plaintiffs subsequently made an application for indemnity costs, which was rejected. Appeal Justice Mahoney said (at 10-11): It is one thing…

Legislation Cited

Corporations Act 2001 (Cth) 1041N(4), 471B, 500(2), 553, 556, 563A
7 mentions (from Para 24)
Bankruptcy Act 1966 (Cth) 58(3), 82(2)
3 mentions (from Para 24)
Federal Court Rules 2011 (Cth) 1.04
2 mentions (from Para 32)
Corporations Amendment (Sons of Gwalia) Act 2010 (Cth)
1 mention (from Para 9)

Citation:		Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770
Parties:		RONALD SELIG AND JANNA SELIG v WEALTHSURE PTY LTD (ABN 93 097 405 108), DAVID BERTRAM, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH
File number:		SAD 11 of 2010
Judge:		LANDER J
Date of judgment:		6 August 2013
Catchwords:		COSTS – application for indemnity costs – whether plaintiffs succeeded at trial upon relevantly different case to that advanced with offer to settle – application for Bullock order PRACTICE AND PROCEDURE – application for leave to enter judgment against bankrupt and in liquidation defendants – application by plaintiffs for stay of orders in their favour pending appeal by defendants
Legislation:		Bankruptcy Act 1966 (Cth), ss 58(3), 82(2) Corporations Act 2001 (Cth), ss 471B, 500(2), 553, 556, 563A, 1041N(4) Corporations Amendment (Sons of Gwalia) Act 2010 (Cth) Federal Court Rules 2011, r 1.04, div 2.3, pt 25
Cases cited:		Bullock v London General Omnibus Co [1907] 1 KB 264 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Fowdh v Fowdh [1993] NSWCA 100 In re Newman; Ex parte Brooke (1876) 3 Ch D 494 Selig v Wealthsure Pty Ltd [2013] FCA 348 Sons of Gwalia v Margaretic; ING Investment Management v Margaretic (2007) 232 ALR 232
Date of hearing:	4 June 2013
Date of last submissions:	5 June 2013
Place:	Adelaide (Telephone Link to Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	110
Counsel for the Plaintiffs:	Mr P Heywood-Smith QC with Mr D Riggall
Solicitor for the Plaintiffs:	Radbone and Associates
Counsel for the First and Second Defendants:	Mr T Cox
Solicitor for the First and Second Defendants:	Cosoff Cudmore Knox
Counsel for the Third Defendant:	The Third Defendant appeared via telephone
Counsel for the Fourth Defendant:	The Fourth Defendant did not appear
Counsel for the Fifth Defendant:	The Fifth Defendant did not appear
Counsel for the Sixth Defendant:	The Sixth Defendant appeared via telephone
Counsel for the Seventh Defendant and liquidators of the Seventh Defendant:	Mr C Coulsen
Solicitor for the Seventh Defendant and liquidators of the Seventh Defendant:	Mills Oakley Lawyers
Counsel for the Eighth to Thirteenth Defendants:	The Eighth to Thirteenth Defendants did not appear

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 11 of 2010