FEDERAL COURT OF AUSTRALIA
Von Reisner v Commonwealth (No 3) [2008] FCA 1028
PRACTICE AND PROCEDURE – slip rule – intention of the Court
Federal Court Rules 1979 (Cth), O 35, r 7
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 followed
Todorovic v Moussa [2001] NSWCA 419, 53 NSWLR 463 followed
Von Reisner v Commonwealth [2007] FCA 1959 cited
Von Reisner v Commonwealth (No 2) [2008] FCA 430 citedKOIDU VON REISNER AND ANOR v COMMONWEALTH OF AUSTRALIA AND ANOR
NSD 1540 OF 2007
FLICK J
8 JULY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1540 OF 2007
BETWEEN:
KOIDU VON REISNER
First ApplicantSALLY RAAD
Second ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
8 JULY 2008
WHERE MADE:
SYDNEY
THE ORDERS OF THE COURT ARE:
1. Order 1 as made on 30 November 2007 be varied as follows:
“1. The Statement of Claim as filed on 7 August 2007, as against the First Respondent, be struck out.”
2. Order 2 as made on 30 November 2007 be varied as follows:
“2. The Statement of Claim as filed on 7 August 2007, as against the Second Respondent, be struck out.”
3. Order 1 as made on 31 March 2008 be varied as follows:
“1. The proceeding be dismissed as against both Respondents.”
4. There be no order as to the costs of 7 July 2008.
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 ApplicantSALLY RAAD
Second ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
JUDGE:
FLICK J
DATE:
8 JULY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Two previous decisions have been given in this matter — the first on 30 November 2007 (Von Reisner v Commonwealth [2007] FCA 1959) and the second on 31 March 2008 (Von Reisner v Commonwealth (No 2) [2008] FCA 430).
On 30 November 2007 the orders then made were as follows:
1.The Application and Statement of Claim as against the First Respondent be dismissed.
2.The Application and Statement of Claim as against the Second Respondent be dismissed.
3.Costs are reserved.
4.Any Amended Application and any Amended Statement of Claim is to be filed and served by 5pm on 29 February 2008.
5.The matter be stood over for mention at 9:30am on 10 March 2008.
Those orders have been entered.
The orders as made on 31 March 2008 were as follows:
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…
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- AGLC
- Von Reisner v Commonwealth (No 3) [2008] FCA 1028
- Case
- [2008] FCA 1028
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the orders made on 30 November 2007 and 31 March 2008 accurately reflected the Court's intention. The Court needed to determine if the orders should be varied to better align with its original intention, considering the context in which they were made and the subsequent developments in the case. The Court also had to consider the implications of varying the orders, including whether such variations could be made under the relevant rules and if the varying orders were appropriate in light of the case's progression.
The Court concluded that the orders made on 30 November 2007 should indeed be varied to more accurately reflect the Court's original intention. The Court found that while the orders had been entered, they did not adequately express the Court's intent to allow the applicants to amend their statements of claim. Consequently, the orders were varied to explicitly state that the statements of claim were to be struck out. Regarding the orders made on 31 March 2008, the Court decided to modify the wording to clarify that the proceedings were dismissed as against both respondents, instead of separately dismissing the claims against each respondent. The Court noted that further issues regarding the appropriateness of these orders were subject to appeal and should be addressed by the Full Court.
The Court's orders varied the previous orders to more accurately reflect its intention, ensuring that the applicants' opportunity to amend their claims was appropriately considered and that the dismissal of the proceedings was clearly communicated. The Court refrained from revisiting the appropriateness of the orders or making new findings, adhering to the principle that varying orders should not supplement the original reasons for decisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FLICK J
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