Mathews, Russell Gordon Haig v Isaac, Hassan Andrew & Ors [1996] FCA 1144

Mathews, Russell Gordon Haig v Isaac, Hassan Andrew & Ors [1996] FCA 1144

The proceedings against the ninth respondent were set aside because the applicant's evidence disclosed no involvement by that respondent in the alleged trespass, the prosecution had been completed so prohibition would be futile, and alleged trespass in serving a summons could not constitute exceptional circumstances justifying Federal Court intervention in criminal proceedings. The claims against the fourth, fifth, sixth, seventh, eighth and tenth respondents were struck out for misjoinder because the alleged trespasses were separate transactions. The proceedings against the first, second and third respondents were struck out as an abuse of process and as frivolous and vexatious because...

Jurisdiction
Australia
Judgment Date
20 December 1996
Procedural Posture
Federal Court Originating Application Seeking Prohibition and Relief Arising From Alleged Trespasses / Reasons for Judgment and Orders on Applications to Strike Out, Set Aside, and Cross Vest Proceedings
Outcome
Proceedings set aside as against the ninth respondent; struck out as against the fourth, fifth, sixth, seventh, eighth and tenth respondents for misjoinder; struck out as against the first, second and third respondents as an abuse of process; costs ordered against the applicant.
Legal Topics
['strike Out' 'misjoinder' 'abuse of Process' 'prohibition' 'cross Vesting' 'trespass' 'judicial Disqualification']
['civil Procedure' 'federal Jurisdiction' 'criminal Procedure' 'torts'] ['strike Out' 'misjoinder' 'abuse of Process' 'prohibition' 'cross Vesting' 'trespass' 'judicial Disqualification']

Case Brief

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Procedural Posture

Federal Court Originating Application Seeking Prohibition and Relief Arising From Alleged Trespasses / Reasons for Judgment and Orders on Applications to Strike Out, Set Aside, and Cross Vest Proceedings

Legal Issues

  1. 1 ['Whether the judge should disqualify himself for bias based on prior participation in a Full Court dismissal of an appeal by the applicant.' 'Whether the proceedings against the Commonwealth Director of Public Prosecutions should be set aside where there was no evidence of involvement in the alleged trespass and the prosecution had been completed.' 'Whether alleged illegal service of a summons involving trespass warranted Federal Court intervention in criminal proceedings by prohibition.' 'Whether the claims against multiple respondents concerning separate alleged trespasses were improperly joined under the Federal Court Rules.' 'Whether leave should be given to join the respondents despite the disparate alleged transactions.' 'Whether the claim against the first, second and third respondents should be cross-vested to the Supreme Court or struck out as an abuse of process.']

Ratio Decidendi

The proceedings against the ninth respondent were set aside because the applicant's evidence disclosed no involvement by that respondent in the alleged trespass, the prosecution had been completed so prohibition would be futile, and alleged trespass in serving a summons could not constitute exceptional circumstances justifying Federal Court intervention in criminal proceedings. The claims against the fourth, fifth, sixth, seventh, eighth and tenth respondents were struck out for misjoinder because the alleged trespasses were separate transactions. The proceedings against the first, second and third respondents were struck out as an abuse of process and as frivolous and vexatious because...

Court Disposition

Proceedings set aside as against the ninth respondent; struck out as against the fourth, fifth, sixth, seventh, eighth and tenth respondents for misjoinder; struck out as against the first, second and third respondents as an abuse of process; costs ordered against the applicant.

Orders

  • ["The time for service of the ninth respondent's notice of motion be abridged." 'As against the ninth respondent, the application be set aside pursuant to O 9 r 7 the Federal Court Rules.' "The applicant pay the ninth respondent's costs of and incidental to the notice of motion and the application to be taxed." 'As...