Maher v Commonwealth Banking Corporation [2002] FCAFC 217

FEDERAL COURT OF AUSTRALIA

Maher v Commonwealth Banking Corporation [2002] FCAFC 217

Dennis Maher v Commonwealth Banking Corporation & Ors V 1097 of 2001 BEAUMONT, SUNDBERG and ALLSOP JJ 16 JULY 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1097 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DENNIS MAHER

APPELLANT

AND: COMMONWEALTH BANKING CORPORATION & ORS

RESPONDENTS

JUDGES: BEAUMONT, SUNDBERG and ALLSOP JJ

DATE OF ORDER: 16 JULY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. there be no order as to costs of the application for leave to appeal and of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1097 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DENNIS MAHER

APPELLANT

AND: COMMONWEALTH BANKING CORPORATION & ORS

RESPONDENTS

JUDGES: BEAUMONT, SUNDBERG and ALLSOP JJ

DATE: 16 JULY 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 In this matter the Court made orders on 16 April 2002. Two matters have been raised by the parties which were not dealt with in our earlier reasons. 2 The first matter concerns Order 80 of the Federal Court Rules. Mr Maher has requested that we make an order under Order 80 concerning the further conduct of the proceedings before the primary judge. We do not propose to do so. The primary judge, as the docket judge, has the responsibility for the management of the proceedings. If any such application is to be made, it should be made to him. 3 The second matter concerns costs. Mr Maher seeks costs of the application for leave to appeal and the appeal. He represented himself. At a directions hearing after the question of costs was raised, Mr Maher was ordered to file written submissions which included an identification of what he said his costs were. He filed submissions. He has identified no actual court fees or other filing fees. He has no professional costs associated with the appeal. He referred to scale charges for disbursements of copying and the like. The costs sought by Mr Maher include the costs before the primary judge dealing with the motion. The primary judge has reserved those costs. It is appropriate that he deal with the question of costs before him. 4 We are of the view that there should be no order as to costs of the application for leave to appeal and of the appeal. In coming to this conclusion three matters are of significance. First, Mr Maher has not identified any real costs to which he would be entitled to justify the time and expense (of the parties and the Court) in dealing with the matter on taxation. Secondly, Mr Maher's notice of appeal did not comply with the rules and by reason of that, to a degree, the respondents were placed in a position of arguing the matter at large. Thirdly, one aspect of the matter important to the resolution of the appeal, being the question of a tenancy at sufferance, was not raised by Mr Maher below (where he did not appear) or before us. 5 In all the circumstances, the order of the Court will be that there be no order as to costs of the application for leave to appeal and of the appeal. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Sundberg and Allsop.