Maher v Commonwealth Bank of Australia [2006] FCA 892

FEDERAL COURT OF AUSTRALIA

Maher v Commonwealth Bank of Australia [2006] FCA 892 COSTS – appeal from judgment of a Federal Magistrate ordering costs against appellant arising out of adjournments –scope of the Federal Magistrates Court's power to award costs – whether discretion to order costs exercised judicially Held: No basis to suggest the learned Federal Magistrate failed to exercise his discretion judicially. The appeal is dismissed with costs. Federal Magistrates Act 1999 (Cth) s79

DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) GREG FIRTH AND GRAY & JOHNSON (A FIRM) VID 965 OF 2005 MARSHALL J 11 JULY 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 965 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES' COURT OF AUSTRALIA

BETWEEN: DENNIS MAHER

APPELLANT

AND: COMMONWEALTH BANK OF AUSTRALIA

(ACN 123 123 124)

FIRST RESPONDENT

GREG FIRTH

SECOND RESPONDENT

GRAY & JOHNSON (A FIRM)

THIRD RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 11 JULY 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the costs of the respondents. 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 VID 965 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES' COURT OF AUSTRALIA

BETWEEN: DENNIS MAHER

APPELLANT

AND: COMMONWEALTH BANK OF AUSTRALIA

(ACN 123 123 124)

FIRST RESPONDENT

GREG FIRTH

SECOND RESPONDENT

GRAY & JOHNSON (A FIRM)

THIRD RESPONDENT

JUDGE: MARSHALL J

DATE: 11 JULY 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant, Mr Maher, has appealed from a judgment of Federal Magistrate McInnis in which his Honour ordered that Mr Maher pay costs in the sum of $2,000. 2 The substantive proceeding before the Federal Magistrate was an application by Mr Maher to set aside a bankruptcy notice. His Honour, by consent, made an order on 28 July 2005 to set aside the bankruptcy notice the subject of the proceeding. 3 His Honour then dealt with an application by the respondents for what he described as "an order for costs arising out of a number of adjournments". The respondents succeeded in part in seeking their costs of those adjournments. Mr Maher contends that his Honour erred in making a costs order in favour of the respondents. The issue for determination in this appeal is whether the Court below erred in the exercise of its discretion to award costs to the respondents in respect of two occasions on which the proceeding was adjourned.