Budini v Sunnyfield (No 2) [2020] FCA 988

Budini v Sunnyfield (No 2) [2020] FCA 988

Recusal on the costs application is not warranted as applicants had opportunity to address criticism and findings were necessary for determination; appropriate apportionment is equal between personal and representative claims, and liability for costs attaches to the litigation representative, not the applicant suffering incapacity; indemnity costs are awarded given unsupported serious allegations lacking evidentiary foundation; right of indemnity from the trust deferred to trial judge.

Jurisdiction
Australia
Judgment Date
15 July 2020
Procedural Posture
Application for Leave and Costs / Post Dismissal of Substantive Application; Determination of Costs and Recusal Applications
Outcome
Application for recusal dismissed; Indemnity costs awarded against Mr Budini in both capacities; trust indemnity application deferred.
Legal Topics
['recusal on Apprehended Bias' 'costs Order' 'litigation Representative Liability' 'indemnity Costs' 'apportionment of Costs' 'rights of Indemnity From Trust']
['practice and Procedure' 'administrative Law' 'human Rights Law' 'disability Discrimination'] ['recusal on Apprehended Bias' 'costs Order' 'litigation Representative Liability' 'indemnity Costs' 'apportionment of Costs' 'rights of Indemnity From Trust']

Case Brief

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Procedural Posture

Application for Leave and Costs / Post Dismissal of Substantive Application; Determination of Costs and Recusal Applications

Legal Issues

  1. 1 ['Whether an apprehension of bias arises on the costs application given prior criticism of a party in the substantive judgment' 'Whether criticisms of party were unnecessary, unwarranted, or made without warning' 'Appropriate apportionment of costs and liability between applicants, especially where one applicant suffers mental incapacity' 'Whether litigation representative has a right of indemnity against a trust for costs liability' 'Whether an order for indemnity costs is warranted based on conduct in proceedings']

Ratio Decidendi

Recusal on the costs application is not warranted as applicants had opportunity to address criticism and findings were necessary for determination; appropriate apportionment is equal between personal and representative claims, and liability for costs attaches to the litigation representative, not the applicant suffering incapacity; indemnity costs are awarded given unsupported serious allegations lacking evidentiary foundation; right of indemnity from the trust deferred to trial judge.

Court Disposition

Application for recusal dismissed; Indemnity costs awarded against Mr Budini in both capacities; trust indemnity application deferred.

Orders

  • ["Mr Michael Budini's recusal application dismissed." "Mr Michael Budini, as former litigation representative to Ms Budini, to pay respondents' costs attributable to Ms Budini's claims." "Mr Michael Budini, in his personal capacity, to pay respondents' costs attributable to his claims." 'Respondents to bear own...