Dudzinski v Kellow 2000 [FCA] 740

Dudzinski v Kellow 2000 [FCA] 740

The applicant showed no sufficient or compelling reason to waive the $750 security required by O 62 r 46(3)(d). His social security status and inability to pay did not equate to the regulatory exemptions for filing, setting down and hearing fees, because security for taxation protects the opposing party and is not government revenue. Having failed to comply with O 62 r 46 or justify waiver, the applicant had not invoked the prescribed procedure for challenging the costs estimate. The Court also found no basis for adjournment, no basis for a one-third reduction under O 62 r 36A, and no evidence warranting directions under O 62 r 36 that would circumvent the costs assessment procedure.

Jurisdiction
Australia
Judgment Date
24 May 2000
Procedural Posture
Procedure Costs; Notice of Motion Concerning Taxation of Costs and Waiver of Security for Costs of Taxation / Federal Court Hearing of Applicant's Notice of Motion Filed 15 March 2000 Seeking Review of Deputy Registrar's Decision and Certificate of Taxation
Outcome
The applicant's notice of motion filed 15 March 2000 was refused, and the applicant was ordered to pay the respondent's costs of the motion.
Legal Topics
['taxation of Costs' 'security for Costs of Taxation' 'review of Registrar Decision' 'waiver of Compliance With Federal Court Rules' 'adjournment' 'reduction of Costs Under O 62 R 36 A']
['civil Procedure' 'costs'] ['taxation of Costs' 'security for Costs of Taxation' 'review of Registrar Decision' 'waiver of Compliance With Federal Court Rules' 'adjournment' 'reduction of Costs Under O 62 R 36 A']

Case Brief

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Procedural Posture

Procedure Costs; Notice of Motion Concerning Taxation of Costs and Waiver of Security for Costs of Taxation / Federal Court Hearing of Applicant's Notice of Motion Filed 15 March 2000 Seeking Review of Deputy Registrar's Decision and Certificate of Taxation

Legal Issues

  1. 1 ['Whether the hearing should be adjourned pending alleged High Court review or related proceedings.' "Whether the Court should review or set aside the Deputy Registrar's refusal to waive the $750 security required by O 62 r 46(3)(d) of the Federal Court Rules." "Whether the applicant's status as a social security recipient and inability to pay justified dispensing with payment of security for costs of taxation." "Whether the respondent's taxed costs should be reduced by one-third under O 62 r 36A." 'Whether the Court should disallow or direct examination of costs alleged to have been improperly, unreasonably or negligently incurred under O 62 r 36.']

Ratio Decidendi

The applicant showed no sufficient or compelling reason to waive the $750 security required by O 62 r 46(3)(d). His social security status and inability to pay did not equate to the regulatory exemptions for filing, setting down and hearing fees, because security for taxation protects the opposing party and is not government revenue. Having failed to comply with O 62 r 46 or justify waiver, the applicant had not invoked the prescribed procedure for challenging the costs estimate. The Court also found no basis for adjournment, no basis for a one-third reduction under O 62 r 36A, and no evidence warranting directions under O 62 r 36 that would circumvent the costs assessment procedure.

Court Disposition

The applicant's notice of motion filed 15 March 2000 was refused, and the applicant was ordered to pay the respondent's costs of the motion.

Orders

  • ['The relief sought on the notice of motion filed 15 March 2000 be refused.' 'The applicant on the motion pay the costs on the motion of the respondent on the motion, to be taxed if not agreed.']