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

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

Orders 1 and 2 made on 30 November 2007 were varied because the Court’s intention was to strike out the then Statement of Claim, not to dismiss the Application and foreclose the Applicants’ opportunity to amend within the existing proceeding. Order 1 made on 31 March 2008, not yet entered, was varied under O 35, r 7(1) to refer to the singular proceeding being dismissed as against both Respondents. The Court declined to use the application to supplement earlier reasons.

Jurisdiction
Australia
Judgment Date
08 July 2008
Procedural Posture
Practice and Procedure – Slip Rule / Application to Vary Previous Orders Under O 35, R 7 of the Federal Court Rules
Outcome
Previous orders varied; no order as to the costs of 7 July 2008.
Legal Topics
['slip Rule' 'variation of Orders' 'intention of the Court' 'striking Out Statement of Claim' 'dismissal of Proceeding']
['practice and Procedure'] ['slip Rule' 'variation of Orders' 'intention of the Court' 'striking Out Statement of Claim' 'dismissal of Proceeding']

Case Brief

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Procedural Posture

Practice and Procedure – Slip Rule / Application to Vary Previous Orders Under O 35, R 7 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether Orders 1 and 2 made on 30 November 2007 should be varied because they did not reflect the intention of the Court.' 'Whether Order 1 made on 31 March 2008 should be varied before entry.' 'Whether an application under O 35, r 7 is an occasion to supplement earlier reasons for decision.']

Ratio Decidendi

Orders 1 and 2 made on 30 November 2007 were varied because the Court’s intention was to strike out the then Statement of Claim, not to dismiss the Application and foreclose the Applicants’ opportunity to amend within the existing proceeding. Order 1 made on 31 March 2008, not yet entered, was varied under O 35, r 7(1) to refer to the singular proceeding being dismissed as against both Respondents. The Court declined to use the application to supplement earlier reasons.

Court Disposition

Previous orders varied; no order as to the costs of 7 July 2008.

Orders

  • ['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."' '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...