Sheikholeslami v Brungs

[2006] FCA 1835

FEDERAL COURT OF AUSTRALIA

Sheikholeslami v Brungs [2006] FCA 1835

ROYA SHEIKHOLESLAMI v MICHAEL BRUNGS & ANOR

NSD757 OF 2005

EMMETT J

8 DECEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD757 OF 2005

BETWEEN:

ROYA SHEIKHOLESLAMI
Applicant

AND:

MICHAEL BRUNGS
First Respondent

UNIVERSITY OF NEW SOUTH WALES
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	8 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.No writ of execution for enforcement of order 2 of 28 July 2006 be issued prior to the day on which Gyles J delivers judgment in the leave application or until after the expiration of 21 days from the time the respondents serve on the applicant a certificate of taxation together with written notice of their intention to request the issue of a writ of execution.

2.The notice of motion be stood over to 9 February 2007 at 9:30 am for directions.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD757 OF 2005

BETWEEN:

ROYA SHEIKHOLESLAMI
Applicant

AND:

MICHAEL BRUNGS
First Respondent

UNIVERSITY OF NEW SOUTH WALES
Second Respondent

JUDGE:	EMMETT J
DATE:	8 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 28 July 2006, Tamberlin J ordered that proceeding NSD757 of 2005 be dismissed.  His Honour ordered the applicant to pay the costs of the respondents on a solicitor/client basis.  The applicant sought leave to appeal from his Honour’s orders.  The application for leave was heard by Gyles J on 26 October 2006, when his Honour reserved his decision.

2. While his Honour observed, in the course of the hearing, that it was most unlikely that, even if some error were established on the part of Tamberlin J, that would result in his Honour’s orders being overturned.  However, his Honour expressed concern that, notwithstanding that the dismissal by Tamberlin J was a summary dismissal, it is conceivable that if leave is not granted, the applicant could be shut out forever from prosecuting the claims she made in the proceeding.  For that reason, his Honour reserved his decision to give the matter some more mature consideration.

3. However, following the hearing, the respondents served on the applicant a bill of costs pursuant to the orders made on 28 July 2006.  Under the Federal Court Rules, the applicant was entitled to object to the bill.  The timeframe under the rules requires that the applicant provide notice of her objections to the bill by 14 December 2006.  Gyles J has not yet given judgment on the application for leave to appeal and the applicant has therefore moved the Court for an order that Order 2 of 28 July 2006 be stayed pending the decision of the Court on the issue of leave to appeal.

4. There is no admissible evidence before me concerning any detriment that would be suffered by the applicant as a consequence of the taxation of the bill proceeding.  On the other hand, it would be undesirable for the order to be enforced by way of execution.  While the question of leave to appeal remains undetermined, I am not prepared, on the basis of the material before me, to stay proceedings in relation to the taxation.

5. However, I consider that it would be appropriate to order that there be no writ of execution issued to enforce the order for costs until the Court has decided the question of leave to appeal or until the expiration of 21 days from the time when the respondents serve on the applicant a certificate of taxation together with written notice of their intention to request the issue of a writ of execution. 

6. In the ordinary course, it is not expected that a certificate of taxation would be issued before a time at the end of January or February 2007.  In the circumstances, it would be appropriate to stand over the motion for further hearing on a day in February 2007 in the event that, by that date, his Honour has not yet given judgment. If a judgment has been given, the only question that would remain would be the question of the costs of the motion. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       10 January 2006

Counsel for the Applicant:	Ms S Sloane
Counsel for the Respondent:	Mr J Mattson
Solicitor for the Respondent:	Bartier Perry
Date of Hearing:	8 December 2006
Date of Judgment:	8 December 2006