Von Reisner v Commonwealth of Australia [2009] FCAFC 97

Von Reisner v Commonwealth of Australia [2009] FCAFC 97

Order 2 could not stand because the respondents sought a vexatious litigants order by notices of motion filed and heard the same day rather than by application as required by O 21 r 3, depriving the appellant of an adequate opportunity to know and answer the case against her. The primary judge also failed to identify the prior proceedings relied on or make the factual findings required under O 21 r 1 or O 21 r 2 that the appellant had habitually, persistently and without reasonable grounds instituted vexatious proceedings.

Jurisdiction
Australia
Judgment Date
20 August 2009
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia / Reasons for Judgment After the Court Granted the Appeal on 27 May 2009 in Respect of Order 2; Costs Reserved
Outcome
Appeal upheld in respect of order 2; order 2 set aside; motion to vacate hearing dismissed; costs reserved.
Legal Topics
['vexatious Litigants Orders' 'federal Court Rules' 'natural Justice' 'summary Dismissal' 'access to Courts']
['practice and Procedure'] ['vexatious Litigants Orders' 'federal Court Rules' 'natural Justice' 'summary Dismissal' 'access to Courts']

Case Brief

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia / Reasons for Judgment After the Court Granted the Appeal on 27 May 2009 in Respect of Order 2; Costs Reserved

Legal Issues

  1. 1 ['Whether the vexatious litigants order was correctly made in accordance with the Federal Court Rules.' "Whether the primary judge made the order pursuant to the respondents' notices of motion or on the Court's own motion." 'Whether the primary judge was required to identify prior proceedings and make factual findings that the appellant had habitually, persistently and without reasonable grounds instituted vexatious proceedings.' 'Whether the appellant was afforded a reasonable opportunity to know and answer the case that she was a vexatious litigant.']

Ratio Decidendi

Order 2 could not stand because the respondents sought a vexatious litigants order by notices of motion filed and heard the same day rather than by application as required by O 21 r 3, depriving the appellant of an adequate opportunity to know and answer the case against her. The primary judge also failed to identify the prior proceedings relied on or make the factual findings required under O 21 r 1 or O 21 r 2 that the appellant had habitually, persistently and without reasonable grounds instituted vexatious proceedings.

Court Disposition

Appeal upheld in respect of order 2; order 2 set aside; motion to vacate hearing dismissed; costs reserved.

Orders

  • ['The Court confirms its orders dated 27 May 2009.' 'The Respondents file and serve any submissions as to costs by 3 September 2009.' 'The Court reserves the question of costs of the proceedings.']