Von Reisner v Commonwealth (No 2) - [2008] FCA 430

FEDERAL COURT OF AUSTRALIA
Von Reisner v Commonwealth (No 2) [2008] FCA 430
PRACTICE AND PROCEDURE – Judiciary Act 1903 (Cth) – s 78B(1) requires a cause to be “pending” in a Federal Court – proposal to file amended application is not a cause “pending” – s 78B further has no application where a pleading raises trivial or unarguable points, or is frivolous or vexatious – proposed amended application considered to be frivolous or vexatious or unarguable
Judiciary Act 1903 (Cth), s 78B
Deputy Commissioner of Taxation v Warwick (No 2) [2004] FCA 918, 56 ATR 371
Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 followed
KOIDU VON REISNER AND ANOR v COMMONWEALTH OF AUSTRALIA AND ANOR
NSD 1540 OF 2007
FLICK J
31 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1540 OF 2007

BETWEEN:

KOIDU VON REISNER
First Applicant

SALLY RAAD
Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

31 MARCH 2008

WHERE MADE:

SYDNEY

THE ORDERS OF THE COURT ARE:
1.The proceedings be dismissed as against both Respondents.
2.The First Applicant is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision.
3.The Applicants to pay the costs of the First Respondent of and incidental to these proceedings including any reserved costs.
4.The Applicants to pay the costs of the Second Respondent of and incidental to these proceedings including any reserved costs.

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

NSD 1540 OF 2007

BETWEEN:

KOIDU VON REISNER
First Applicant

SALLY RAAD
Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

JUDGE:

FLICK J

DATE:

31 MARCH 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

These proceedings were first commenced by way of an Application and a Statement of Claim filed on 7 August 2007.
On 30 November 2007 orders were made dismissing the Application and Statement of Claim as against both Respondents, namely the Commonwealth of Australia and the State of New South Wales. Also on 30 November 2007 orders were made that any amended application and any amended statement of claim were to be filed and served by 5pm on 29 February 2008. No such amended application and no such amended statement of claim were then filed.
The matter came back before the Court on 10 March 2008 and on that occasion a further opportunity was given to the Applicants to file any proposed amended application and any proposed amended statement of claim. That was to be done by 25 March 2008. No such proposed amended application and no such proposed amended statement of claim were filed in accordance with those orders.
Presently before…

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 Von Reisner v Commonwealth (No 2)

Details

AGLC: Von Reisner v Commonwealth (No 2) [2008] FCA 430
Case: [2008] FCA 430
Decision Date: 31 March 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Von Reisner v Commonwealth (No 2) [2008] FCA 430 involved Koid Du Von Reisner and Sally Raad as applicants against the Commonwealth of Australia and the State of New South Wales as respondents. The applicants had initially filed an application and a statement of claim on 7 August 2007. The matter was dismissed on 30 November 2007, with orders given that any amended application and statement of claim would need to be filed by 5pm on 29 February 2008. No such application or statement of claim was filed, and further opportunity was given to the applicants to file an amended application by 25 March 2008. Again, no such application was filed. The respondents sought orders that the first applicant should not commence any proceedings without leave of the court, and the matter came before Flick J on 31 March 2008.

The legal issues the court was required to decide were whether the proposed amended application was frivolous or vexatious, and whether section 78B of the Judiciary Act 1903 (Cth) had any application. Flick J held that the proposed amended application went well beyond the issues as previously sought to be raised and sought relief that was substantially different. The court found that the proposed application was frivolous or vexatious, and that section 78B of the Judiciary Act did not apply because there was no cause pending in the court.

The court's reasoning was that the applicants had already been given ample opportunity to file the amended application and had failed to do so. The proposed amended application was considered to be embarrassing in substance and sought relief that was substantially different from the initial application. The court held that the proposed application raised issues that were frivolous or vexatious, and that section 78B of the Judiciary Act did not apply because there was no cause pending in the court. Flick J dismissed the proceedings and ordered that the applicants were not to commence any proceedings in the court without leave, and that the applicants were to pay the costs of the respondents.

In summary, the court held that the proposed amended application was frivolous or vexatious, and that section 78B of the Judiciary Act did not apply because there was no cause pending in the court. The court dismissed the proceedings and ordered that the applicants were not to commence any proceedings in the court without leave, and that the applicants were to pay the costs of the respondents.

Orders