Kitchen v Director of Professional Services Review [2023] FCAFC 160

Kitchen v Director of Professional Services Review [2023] FCAFC 160

Leave to appeal was refused because Dr Kitchen did not establish that the primary judgment was attended by sufficient doubt. The primary judge's reasons, read as a whole and with a more stringent approach because of the delay, disclosed the path to the costs decision and were adequate. The primary judge did not err in finding that the Director's resistance was not unarguable or hopeless: the proposed inference about the Director's knowledge was not drawn, the Director's 4 December 2020 letter was inconsistent with that inference, and for much of the proceeding Dr Kitchen required a significant extension of time under the ADJR Act and had not sought the later relief under the Judiciary Act...

Jurisdiction
Australia
Judgment Date
03 October 2023
Procedural Posture
Application for Leave to Appeal a Costs Order / Full Court Application for Leave to Appeal From Kitchen V Director of Professional Services Review (no 4) [2022] FCA 780
Outcome
Application for leave to appeal refused with costs.
Legal Topics
['leave to Appeal' 'indemnity Costs' 'adequacy of Reasons' 'delay in Giving Judgment' 'professional Services Review' 'extension of Time' 'res Judicata']
['costs' 'administrative Law' 'judicial Review'] ['leave to Appeal' 'indemnity Costs' 'adequacy of Reasons' 'delay in Giving Judgment' 'professional Services Review' 'extension of Time' 'res Judicata']

Case Brief

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Procedural Posture

Application for Leave to Appeal a Costs Order / Full Court Application for Leave to Appeal From Kitchen V Director of Professional Services Review (no 4) [2022] FCA 780

Legal Issues

  1. 1 ["Whether leave to appeal from the primary judge's costs order was required and should be granted." 'Whether the primary judgment was attended by sufficient doubt because the primary judge gave inadequate reasons, particularly in light of delay in delivering judgment.' "Whether the primary judge erred in concluding that the first respondent's resistance of the proceeding was not unarguable or hopeless." 'Whether substantial injustice needed to be considered if sufficient doubt was not established.']

Ratio Decidendi

Leave to appeal was refused because Dr Kitchen did not establish that the primary judgment was attended by sufficient doubt. The primary judge's reasons, read as a whole and with a more stringent approach because of the delay, disclosed the path to the costs decision and were adequate. The primary judge did not err in finding that the Director's resistance was not unarguable or hopeless: the proposed inference about the Director's knowledge was not drawn, the Director's 4 December 2020 letter was inconsistent with that inference, and for much of the proceeding Dr Kitchen required a significant extension of time under the ADJR Act and had not sought the later relief under the Judiciary Act...

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • ['The application for leave to appeal be refused.' "The applicant pay the first respondent's costs of and incidental to the application for leave to appeal."]