Henke v Carter [2002] FCA 492

Henke v Carter [2002] FCA 492

The notice of motion was dismissed because the order concerning Marleen Elva Broadley had not been reviewed by Gray J and remained operative, there was no evidence of any subpoena contrary to Gray J's orders, the funding issue had already been considered by Gray J and there was no jurisdictional basis to revisit it on the motion, and the motion was wholly untenable, misconceived and an abuse of process. Those features also justified indemnity costs against the moving applicants, including in favour of Finlaysons, against whom there was no basis for the claim.

Jurisdiction
Australia
Judgment Date
10 April 2002
Procedural Posture
Practice and Procedure; Notice of Motion Alleging Contempt of Court Orders and Seeking Stay or Striking Out of Subpoenas / Hearing of Applicants' Notice of Motion Filed 9 April 2002 and Respondents' Motion for Indemnity Costs Filed 10 April 2002
Outcome
The applicants' notice of motion filed 9 April 2002 was dismissed and indemnity costs were ordered in favour of both respondents.
Legal Topics
['contempt of Court' 'corporations Examinations' "review of Registrar's Orders" 'abuse of Process' 'issue Estoppel' 'indemnity Costs']
['practice and Procedure' 'corporations' 'costs'] ['contempt of Court' 'corporations Examinations' "review of Registrar's Orders" 'abuse of Process' 'issue Estoppel' 'indemnity Costs']

Case Brief

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Procedural Posture

Practice and Procedure; Notice of Motion Alleging Contempt of Court Orders and Seeking Stay or Striking Out of Subpoenas / Hearing of Applicants' Notice of Motion Filed 9 April 2002 and Respondents' Motion for Indemnity Costs Filed 10 April 2002

Legal Issues

  1. 1 ['Whether the respondents were in contempt by issuing a subpoena to Marleen Elva Broadley contrary to orders made by Gray J on 14 March 2002.' "Whether the applicants could require the respondents to provide evidence that they could comply with Gray J's order concerning funding of examination expenses from company assets." 'Whether subpoenas issued pursuant to the order of 14 March 2002 should be stayed or struck for alleged non-compliance with that order.' 'Whether the motion was an abuse of process and warranted indemnity costs.' 'Whether there was any basis for the claim against the second respondent, Finlaysons.']

Ratio Decidendi

The notice of motion was dismissed because the order concerning Marleen Elva Broadley had not been reviewed by Gray J and remained operative, there was no evidence of any subpoena contrary to Gray J's orders, the funding issue had already been considered by Gray J and there was no jurisdictional basis to revisit it on the motion, and the motion was wholly untenable, misconceived and an abuse of process. Those features also justified indemnity costs against the moving applicants, including in favour of Finlaysons, against whom there was no basis for the claim.

Court Disposition

The applicants' notice of motion filed 9 April 2002 was dismissed and indemnity costs were ordered in favour of both respondents.

Orders

  • ['The application by Ian Sidney Henke, Lance Stewart Miller, and Robyn Diane Coningham by way of notice of motion filed on 9 April 2002 is dismissed.' "The applicants, Ian Sidney Henke, Lance Stewart Miller and Robyn Diane Coningham, pay the costs of the first respondent and the second respondent of and incidental...