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

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

The Applicants had already been given ample opportunity to file amended pleadings and had failed to do so. The proposed amended application went beyond the scope of the existing proceedings, sought different relief, added different applicants and respondents, and was embarrassing in substance. Section 78B(1) did not prevent the Court from proceeding because no cause was pending in respect of the proposed amended application and, in any event, the proposed issues were frivolous or vexatious or unarguable. The proceedings were therefore dismissed and the First Applicant was ordered not to commence proceedings in the Court without prior leave, subject to the stated appeal exception.

Jurisdiction
Australia
Judgment Date
31 March 2008
Procedural Posture
Practice and Procedure / Notices of Motion by Both Respondents Seeking Orders That the First Applicant Not Commence Proceedings Without Leave; Final Orders Dismissing the Proceedings
Outcome
Proceedings dismissed as against both Respondents; First Applicant restrained from commencing proceedings in the Court without prior leave, excluding any application to appeal or seeking leave to appeal from this decision; costs ordered against the Applicants.
Legal Topics
['judiciary Act 1903 (cth) S 78 B' 'amended Application' 'frivolous or Vexatious Proceedings' 'leave to Commence Proceedings' 'dismissal of Proceedings']
['practice and Procedure' 'federal Jurisdiction'] ['judiciary Act 1903 (cth) S 78 B' 'amended Application' 'frivolous or Vexatious Proceedings' 'leave to Commence Proceedings' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure / Notices of Motion by Both Respondents Seeking Orders That the First Applicant Not Commence Proceedings Without Leave; Final Orders Dismissing the Proceedings

Legal Issues

  1. 1 ['Whether the Applicants should be given a further opportunity to file an amended application and amended statement of claim.' 'Whether the proposed amended application was within the scope of the existing proceedings or was in substance a new proceeding.' "Whether s 78B(1) of the Judiciary Act 1903 (Cth) prevented the Court from hearing the Respondents' motions." 'Whether the proposed amended application raised issues that were frivolous or vexatious or unarguable.' 'Whether the First Applicant should be restrained from commencing proceedings in the Court without prior leave.']

Ratio Decidendi

The Applicants had already been given ample opportunity to file amended pleadings and had failed to do so. The proposed amended application went beyond the scope of the existing proceedings, sought different relief, added different applicants and respondents, and was embarrassing in substance. Section 78B(1) did not prevent the Court from proceeding because no cause was pending in respect of the proposed amended application and, in any event, the proposed issues were frivolous or vexatious or unarguable. The proceedings were therefore dismissed and the First Applicant was ordered not to commence proceedings in the Court without prior leave, subject to the stated appeal exception.

Court Disposition

Proceedings dismissed as against both Respondents; First Applicant restrained from commencing proceedings in the Court without prior leave, excluding any application to appeal or seeking leave to appeal from this decision; costs ordered against the Applicants.

Orders

  • ['The proceedings be dismissed as against both Respondents.' '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.' 'The Applicants to pay the costs of the First Respondent of and...