Glover & Sheils, in the matter of Roche [2005] FCA 1244

Glover & Sheils, in the matter of Roche [2005] FCA 1244

The motion was misconceived because the costs order sought to be set aside was made in connection with action SC 211 of 2004, which had been discontinued before transfer to the Federal Court and was not a matter of which Dowsett J was seized; Order 35 rule 7 did not apply and the Court lacked jurisdiction to revisit the order except by Constitutional writ or appeal. The motion was dismissed and the applicants on the motion were ordered to pay the respondents' costs forthwith, but not on an indemnity basis.

Jurisdiction
Australia
Judgment Date
01 September 2005
Procedural Posture
Notice of Motion in Federal Court Proceedings / Determination of Notice of Motion Filed 18 August 2005
Outcome
Notice of motion filed 18 August 2005 dismissed.
Legal Topics
['dismissal of Notice of Motion' 'forthwith Costs Order' 'power to Revisit Costs Order' 'indemnity Costs']
['civil Procedure' 'costs' 'jurisdiction'] ['dismissal of Notice of Motion' 'forthwith Costs Order' 'power to Revisit Costs Order' 'indemnity Costs']

Case Brief

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Procedural Posture

Notice of Motion in Federal Court Proceedings / Determination of Notice of Motion Filed 18 August 2005

Legal Issues

  1. 1 ['Whether the Court should set aside the order that costs be paid forthwith made in connection with action SC 211 of 2004.' 'Whether Order 35 rule 7 applied to permit the Court to revisit that order.' "Whether the applicants on the motion should pay the respondents' costs, including reserved costs, and whether those costs should be on an indemnity basis."]

Ratio Decidendi

The motion was misconceived because the costs order sought to be set aside was made in connection with action SC 211 of 2004, which had been discontinued before transfer to the Federal Court and was not a matter of which Dowsett J was seized; Order 35 rule 7 did not apply and the Court lacked jurisdiction to revisit the order except by Constitutional writ or appeal. The motion was dismissed and the applicants on the motion were ordered to pay the respondents' costs forthwith, but not on an indemnity basis.

Court Disposition

Notice of motion filed 18 August 2005 dismissed.

Orders

  • ['The notice of motion filed 18 August 2005 be dismissed.' "The applicants on the motion be ordered to pay the respondents' costs of and incidental to the motion, including reserve costs. Those costs are to be paid forthwith."]