Sheikholeslami v Brungs No 2

[2007] FCA 145

FEDERAL COURT OF AUSTRALIA

Sheikholeslami v Brungs No 2 [2007] FCA 145

ROYA SHEIKHOLESLAMI v MICHAEL BRUNGS AND ANOR

NSD757 OF 2005

EMMETT J

9 FEBRUARY 2007

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:	9 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Applicant pay the Respondents’ costs of the Notice of Motion on 8 December 2006 and there be no order as to the costs of 9 February 2007.

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:

9 FEBRUARY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. On 28 July 2006, Tamberlin J ordered that a proceeding be dismissed summarily.  His Honour ordered the applicant to pay the respondents’ costs.  The applicant then sought leave to appeal from the orders that his Honour then made.  On 26 October 2006 Gyles J heard argument on the question of leave to appeal.  While his Honour expressed a preliminary view that he thought that the appeal had little prospects of success, his Honour reserved his decision bearing in mind the finality of any order refusing leave. The applicant was represented by legal counsel in the argument before Gyles J on 26 October 2006.  No application was made to Gyles J for a stay of any proceeding relating to the costs ordered by Tamberlin J.

2. Later on 26 October 2006 the respondent served on the applicant a bill of costs in respect of the costs ordered by Tamberlin J.  The applicant then filed a notice of motion seeking some relief in relation to the bill of costs.  The relief claimed was not entirely clear, it having been drafted by the applicant herself, who has no legal qualifications. 

3. In effect, however, the motion sought a stay of proceedings in relation to the costs order made by Tamberlin J. The motion came before me for hearing on 8 December 2006.  On that day, I observed that there was no evidence of any real prejudice on the part of the applicant if a bill for the costs ordered by Tamberlin J were to proceed to taxation.  However, there was no opposition from the respondent to an order that no writ of execution for enforcement of the costs order be issued prior to the day on which Gyles J delivered judgment on the leave application or until after the expiration of 21 days from the time when a certificate of taxation was served. I therefore made orders in those terms.  I stood the motion over to 9 February 2007. 

4. In the meantime, Gyles J ordered on 20 December 2006 that the application for leave to appeal be dismissed and that the applicant pay the costs of that application.  His Honour concluded there was not sufficient doubt about the judgment of Tamberlin J to warrant the grant of leave, taking into account the potential effect upon the interests of the applicant.  The question remaining therefore is who should bear the costs of the motion that I heard on 8 December 2006. 

5. There is obviously ill will between the applicant and the respondents.  However, it does appear to me that the applicant’s motion was unnecessary.  It would have been a simple matter for the applicant’s counsel to have asked Gyles J for a stay of proceedings concerning the costs pending his decision on the application for leave.  It is really that omission that led to the need to file a motion, assuming there was indeed any need to do so.  On the other hand, the respondents waited until after the hearing on 26 October before serving their bill of costs. 

6. In all of the circumstances, I consider that it is appropriate to order the applicant to pay the respondents’ costs of the motion of 8 December 2006.  I make no order as to costs of today. 

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:        16 February 2007

Counsel for the Applicant:	Ms S Sloane
Counsel for the Respondent:	Mr J Mattson
Solicitor for the Respondent:	Bartier Perry
Date of Hearing:	9 February 2007
Date of Judgment:	9 February 2007