Marshall v Soedarjanto [2003] FCA 797

Marshall v Soedarjanto [2003] FCA 797

Leave to appeal was warranted because the Federal Magistrate dismissed the appellant's security for costs motion on the mistaken basis that Carr J had already ordered security for costs in matter WZ160/02. That fundamental mistake of fact caused the exercise of discretion to miscarry entirely, so the motion was not determined on its merits and had to be redetermined.

Jurisdiction
Australia
Judgment Date
18 June 2003
Procedural Posture
Application for Leave to Appeal From an Interlocutory Judgment of the Federal Magistrates Court Dismissing a Motion for Security for Costs / Leave to Appeal Granted and Appeal Heard Instanter
Outcome
Leave to appeal granted; appeal allowed; order dismissing the motion for security for costs set aside and motion remitted to the Federal Magistrates Court for redetermination.
Legal Topics
['leave to Appeal From Interlocutory Judgment' 'security for Costs' 'exercise of Discretion' 'mistake of Fact']
['practice and Procedure' 'appellate Procedure' 'costs'] ['leave to Appeal From Interlocutory Judgment' 'security for Costs' 'exercise of Discretion' 'mistake of Fact']

Case Brief

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Procedural Posture

Application for Leave to Appeal From an Interlocutory Judgment of the Federal Magistrates Court Dismissing a Motion for Security for Costs / Leave to Appeal Granted and Appeal Heard Instanter

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from an interlocutory judgment of the Federal Magistrates Court' "Whether the Federal Magistrate's dismissal of the motion for security for costs miscarried because it was based on a mistaken belief that Carr J had already ordered security for costs in matter WZ160/02"]

Ratio Decidendi

Leave to appeal was warranted because the Federal Magistrate dismissed the appellant's security for costs motion on the mistaken basis that Carr J had already ordered security for costs in matter WZ160/02. That fundamental mistake of fact caused the exercise of discretion to miscarry entirely, so the motion was not determined on its merits and had to be redetermined.

Court Disposition

Leave to appeal granted; appeal allowed; order dismissing the motion for security for costs set aside and motion remitted to the Federal Magistrates Court for redetermination.

Orders

  • ['The appellant have leave to appeal from the judgment of the Federal Magistrates Court on 7 February 2003 in matter WZ160/02.' 'The appeal be allowed.' 'Order 1 of the judgment be set aside and the motion redetermined by the Federal Magistrates Court.' "The respondent pay the appellant's costs of the appeal."]