Von Reisner v Commonwealth (No 3) - [2008] FCA 1028

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 cited
KOIDU 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 Applicant

SALLY RAAD
Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE 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 Applicant

SALLY RAAD
Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE 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…

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 3)

Details

AGLC: Von Reisner v Commonwealth (No 3) [2008] FCA 1028
Case: [2008] FCA 1028
Decision Date: 8 July 2008

CaseChat Overview and Summary

In Von Reisner v Commonwealth (No 3), the applicants, Koiddu Von Reisner and Sally Raad, sought to challenge orders previously made by the Federal Court of Australia. The Commonwealth of Australia and the State of New South Wales were the respondents. The applicants' claims were related to the Federal Court's handling of their previous applications and statements of claim. The case involved the interpretation and application of the Federal Court Rules, particularly Order 35, Rule 7, which allows the Court to vary or set aside judgments or orders that do not reflect the Court's intention.

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