Valassis v Bernard

[2002] FCAFC 232

FEDERAL COURT OF AUSTRALIA

Valassis v Bernard [2002] FCAFC 232

DENIS VALASSIS V ERIC BERNARD
N245 of 2002

HELY, STONE & JACOBSON JJ
13 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 245 of 2002

On appeal from a judge of the Federal Court of Australia

BETWEEN:	DENNIS VALASSIS APPELLANT
AND:	ERIC BERNARD RESPONDENT
JUDGE:	HELY, STONE & JACOBSON JJ
DATE OF ORDER:	13 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the respondent’s costs in the proceedings.

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	N 245 of 2002

On appeal from a judge of the Federal Court of Australia

BETWEEN:	DENNIS VALASSIS APPELLANT
AND:	ERIC BERNARD RESPONDENT

JUDGE:	HELY, STONE & JACOBSON JJ
DATE:	13 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:

1. I agree with the reasons of Jacobson J set out below.

STONE J:

1. I have had the opportunity of reading the reasons for judgment of Jacobson J.  I agree with his Honour’s reasons and with the orders he proposes.

JACOBSON J:

1. On 12 March 2002, Emmett J ordered the appellant (“the debtor”) to pay the costs of a creditor’s petition filed by the respondent (“the creditor”) on 18 June 2001.

2. The debtor appeals against the costs order. He is entitled to do so as of right because the order constitutes a final judgment; s 24 of the Federal Court of Australia Act1976 (Cth) (“the Act”); see also Lombok Pty Limited v Supetina Pty Limited (l987) 14 FCR 226 at 247 (“Lombok”) per Pincus J.

3. By contrast with the position in this Court, appeals against costs orders in the Supreme Court of New South Wales lie only with leave; Supreme Court Act1970 (NSW), s 101(1)(c). The requirement of leave operates as a filter of work, thereby promoting the efficiency of the Court by limiting the full hearing of appeals to those which raise questions of principle; Coulter v The Queen (1987) 164 CLR 350 at 359 per Deane & Gaudron JJ.

4. There is much to be said for the proposition that the Act should be amended to require leave conformably with the applicable legislative provision in New South Wales. In a case such as the present, the costs incurred by the parties in conducting a full appeal may well outweigh the amount due under the costs order which is the subject of the appeal.

5. In any event, although the appeal is as of right, the order made by Emmett J was an exercise of his Honour’s discretion to award costs; s 43(2) of the Act; see also Lombok at 247; and see Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at 48,136 per Toohey J. Accordingly the appeal must fail unless the appellant can establish that his Honour’s discretion miscarried within the well-known…