Scholes v Commonwealth of Australia [2021] FCA 1593

Federal Court of Australia

Scholes v Commonwealth of Australia [2021] FCA 1593 File number(s): VID 480 of 2019

Judgment of: KERR J

Date of judgment: 17 December 2021

Catchwords: TORTS – tort of false imprisonment – whether consular assistance provided to the Applicant for his 'rescue' in the aftermath of his having been kidnapped in Nigeria was imposed on him contrary to his consent – application dismissed EVIDENCE – Applicant's witnesses not giving evidence – whether the Court is entitled to draw a Jones v Dunkel inference COSTS – whether manner of conduct of Respondent's case may warrant limited departure from ordinary rule that costs follow event

Legislation: Evidence Act 1995 (Cth) Oaths and Affirmations Act 2018 (Vic)

Cases cited: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 53 Jones v Dunkel [1959] 101 CLR 298 Nominal Defendant v Rooskov [2012] NSWCA 43

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 297

Date of hearing: 5-8 October 2021

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr A Dinelli with Ms S Kearney

Solicitor for the Respondent: Maddocks Lawyers

ORDERS VID 480 of 2019

BETWEEN: ALISTAIR PETER SCHOLES Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent

order made by: KERR J DATE OF ORDER: 17 DECEMBER 2021

THE COURT ORDERS THAT:

1. The Applicant's application be dismissed. 2. Unless either party advises the Court by no later than 14 January 2022 that they would seek an alternative order, the Applicant shall pay the Respondent's costs of the proceeding (including any costs thrown away by reason of the Respondent providing arrangements for the Applicant to call witnesses in Nigeria) other than the costs of the trial on 5-8 October 2021. 3. If either party seeks an alternative order as is provided for in Order 2 the parties shall have until no later than 4:00pm 21 January 2022 to file and serve any written submissions (limited to 3 pages) upon which they may seek to rely in relation to costs. 4. Unless the Court otherwise orders any question of costs so arising be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.