Stuart v Sanderson

[2000] FCA 1240

FEDERAL COURT OF AUSTRALIA

Stuart v Sanderson [2000] FCA 1240

DIANA BETTINA STUART v LIEUTENANT GENERAL SANDERSON & ANOR
N 464 of 1999

MADGWICK J
4 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 464 of 1999

BETWEEN:	DIANA BETTINA STUART APPLICANT
AND:	LIEUTENANT GENERAL SANDERSON (acting as Chief of General Staff) FIRST RESPONDENT
AND:	CHIEF OF THE ARMY SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	4 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The respondents should pay two-thirds of the applicant’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 464 of 1999

BETWEEN:	DIANA BETTINA STUART APPLICANT
AND:	LIEUTENANT GENERAL SANDERSON (acting as Chief of General Staff) FIRST RESPONDENT
AND:	CHIEF OF THE ARMY SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. I am indebted to the parties for their helpful written submissions.  My conclusion is that the respondents should pay two-thirds of the applicant’s costs.

2. This view does not represent an inappropriate resort to Solomon’s methods.  The applicant won on the principal issue.  Most of her costs are likely to be attributable to the preparation and presentation of her case on that issue.

3. In order to succeed on the principal issue, the applicant had also to meet a powerful case involving quasi-discretionary and discretionary issues.  Her path was made the harder by delay and lack of timely attention to the proper legal analysis of her plight.  To some extent, she did receive something like a dispensation from the Court.  Had she acted in a timely way to vindicate the legal position which, ultimately, she successfully asserted, both her costs and the respondents’ costs  would have been less.

4. While costs in this Court are discretionary, the discretion is to be judicially exercised.  In my opinion the order which I propose is the result of such an exercise of the discretion.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            4 September 2000

Counsel for the Applicant:	G Corr and B Levet
Solicitor for the Applicant:	Ron Kessels Solicitor
Counsel for the Respondents:	R Tracey QC and R Henderson
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	13 September 1999
Date of Judgment:	4 September 2000