Henke v Carter [2002] FCA 492

FEDERAL COURT OF AUSTRALIA

Henke v Carter [2002] FCA 492 PRACTICE AND PROCEDURE – allegation that respondents in contempt of order of Court – whether respondents issued subpoena for examination contrary to order of Court – where applicants seeking to re‑litigate matter previously dealt with by judge of Court – abuse of process – no basis for motion – no basis for claim against second respondent. COSTS – indemnity costs against applicants – whether special or unusual feature – motion untenable and misconceived – motion abuse of process.

Federal Court Act 1976 (Cth): s 43 IAN SIDNEY HENKE & ORS v BRUCE JAMES CARTER & ANOR V 1166 of 2001 GOLDBERG J 10 APRIL 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1166 of 2001

BETWEEN: IAN SIDNEY HENKE

First Applicant

LANCE STEWART MILLER

Second Applicant

ROBYN DIANE CONINGHAM

Third Applicant

FRANCIS JOHN CONINGHAM

Fourth Applicant

AND: BRUCE JAMES CARTER

First Respondent

FINLAYSONS (A FIRM)

Second Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 10 APRIL 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application by Ian Sidney Henke, Lance Stewart Miller, and Robyn Diane Coningham by way of notice of motion filed on 9 April 2002 is dismissed. 2. The applicants, Ian Sidney Henke, Lance Stewart Miller and Robyn Diane Coningham, pay the costs of the first respondent and the second respondent of and incidental to the said motion, and of the respondents' motion filed on 10 April 2002. Such costs are to be taxed on the basis, in each case, that the costs include all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, each of the said respondents is completely indemnified by the said applicants for their costs. 3. Liberty is reserved to all parties to apply for such further or other orders as they think fit. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules