McDonald v Colbran (No 2) [2020] FCA 470

McDonald v Colbran (No 2) [2020] FCA 470

The applicants were wholly unsuccessful in the substantive proceeding and the Court had jurisdiction under s 43 of the Federal Court of Australia Act 1976 (Cth) to order costs. The usual rule that costs follow the event applied, and a fixed sum was appropriate because taxation would cause undue delay and expense. The applicants had repeatedly attempted to relitigate matters concerning Besanko J's judgment, there was a very strong likelihood they would lodge further similar documents, no impecuniosity was shown, and the requested r 39.03(2) stay was narrow, proportionate and did not practically stultify access to judicial review because it merely conditioned continuation of specified...

Jurisdiction
Australia
Judgment Date
09 April 2020
Procedural Posture
Judicial Review of a Registrar's Decision to Refuse to Accept Documents for Filing; Interlocutory Applications Concerning Costs and a Stay of Future Proceedings / After Substantive Orders Made on 29 November 2019, With an Appeal Commenced in SAD 276 of 2019
Outcome
The applicants' interlocutory application was dismissed; the respondent's stay application was granted; costs were fixed and stayed pending finalisation of SAD 276 of 2019 subject to the commencement of specified further proceedings.
Legal Topics
['order Under R 39.03 of the Federal Court Rules 2011 (cth) Staying Future Proceedings Until Costs Are Paid' 'costs Following the Event' 'fixed Sum Costs Order' "registrar's Refusal to Accept Documents for Filing Under R 2.26" 'abuse of Process' "judicial Review of Registrar's Decision"]
['practice and Procedure' 'administrative Law' 'costs'] ['order Under R 39.03 of the Federal Court Rules 2011 (cth) Staying Future Proceedings Until Costs Are Paid' 'costs Following the Event' 'fixed Sum Costs Order' "registrar's Refusal to Accept Documents for Filing Under R 2.26" 'abuse of Process' "judicial Review of Registrar's Decision"]

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Procedural Posture

Judicial Review of a Registrar's Decision to Refuse to Accept Documents for Filing; Interlocutory Applications Concerning Costs and a Stay of Future Proceedings / After Substantive Orders Made on 29 November 2019, With an Appeal Commenced in SAD 276 of 2019

Legal Issues

  1. 1 ['Whether the costs order made on 29 November 2019 should be revoked' 'Whether the amount of the costs order should be varied' 'Whether costs should be fixed in a specified sum rather than referred to taxation' 'Whether an order should be made under r 39.03(2) staying further proceedings against the respondent of a limited kind until the costs order is satisfied' 'Whether the costs orders should be stayed pending finalisation of the appeal']

Ratio Decidendi

The applicants were wholly unsuccessful in the substantive proceeding and the Court had jurisdiction under s 43 of the Federal Court of Australia Act 1976 (Cth) to order costs. The usual rule that costs follow the event applied, and a fixed sum was appropriate because taxation would cause undue delay and expense. The applicants had repeatedly attempted to relitigate matters concerning Besanko J's judgment, there was a very strong likelihood they would lodge further similar documents, no impecuniosity was shown, and the requested r 39.03(2) stay was narrow, proportionate and did not practically stultify access to judicial review because it merely conditioned continuation of specified...

Court Disposition

The applicants' interlocutory application was dismissed; the respondent's stay application was granted; costs were fixed and stayed pending finalisation of SAD 276 of 2019 subject to the commencement of specified further proceedings.

Orders

  • ["The applicants' interlocutory application filed on 9 December 2019 is dismissed." "The applicants are to pay the respondent's costs of the applicants' interlocutory application filed on 9 December 2019 and the respondent's application for an order in terms sought in [3.2] of the affidavit of Tarley Leideritz...