FEDERAL COURT OF AUSTRALIA

Kirk v Ashdown [1999] FCA 587

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Refd

DEBORAH ANN KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN

QG 7430 of 1998

JUDE CHRISTOPHER KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN

QG 7507 of 1998

KIEFEL J

BRISBANE

29 April 1999

THE COURT ORDERS THAT:

1.         All of the affidavit material filed by the applicant be sealed in an envelope and not opened save by order of a Judge.

2.         The applicant pay the respondents’ costs of and incidental to the application on the basis that such costs are to include all costs save insofar as they are of an unreasonable amount or were unreasonably incurred, so that subject to such exceptions the respondents will be completely indemnified by the applicant for their costs. 

3.         In the event that a sequestration order is made against the applicant based upon the bankruptcy notice the subject of this application, any part of the costs of the application that then remain unpaid is to be treated as if that part of the costs were the petitioning creditor’s costs.

THE COURT FURTHER DIRECTS THAT:

4.         The petition filed in QG 7506 of 1998 be referred to the District Registrar for hearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.         All of the affidavit material filed by the applicant be sealed in an envelope and not opened save by order of a Judge.

2.         The applicant pay the respondents’ costs of and incidental to the application on the basis that such costs are to include all costs save insofar as they are of an unreasonable amount or were unreasonably incurred, so that subject to such exceptions the respondents will be completely indemnified by the applicant for their costs. 

3.         In the event that a sequestration order is made against the applicant based upon the bankruptcy notice the subject of this application, any part of the costs of the application that then remain unpaid is to be treated as if that part of the costs were the petitioning creditor’s costs.

THE COURT FURTHER DIRECTS THAT:

4.         The petition filed in QG 7506 of 1998 be referred to the District Registrar for hearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND:

SUPPLEMENTARY REASONS FOR JUDGMENT

1                     I am asked to make a further order that the affidavit material filed by each of the applicants either be removed from the record or sealed having regard to the nature of the allegations contained in them and the privilege which attaches to allegations referred to in proceedings.  Whilst there is not a great likelihood that persons will have access to them, because of the limitations upon access under the rules, nevertheless they are of such a nature that extra precaution would seem to be appropriate.

2                     Removal of the material might be appropriate at the conclusion of the bankruptcy proceedings.  For the present, I consider that there ought to be an order that all of the affidavit material filed by each of the applicants be sealed in an envelope and not be opened save by order of a Judge.

3                     I am also asked to make a special order for costs.  I have not made findings as to whether there was any substance in the allegations that false evidence was given.  Nevertheless, there were substantial and serious allegations made which could not be shown to have affected the outcome of the Supreme Court judgment upon which the notices were based.  They were, in that sense, truly irrelevant and within the category referred to by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233.

4                     I think that in these circumstances, which combine considerable complexity, seriousness and where the applications have taken considerable time, that there ought to be an order protecting the respondents in relation to costs.  To that may be added, although it is of lesser moment, the fact that there were points raised in relation to service which were not pursued.  I would not have made a special order on that basis alone.  The order I make is based largely upon the allegations of perjury.

5                     I will therefore order that each of the applicants pay the respondent’s costs of and incidental to his or her application on the basis that such costs are to include all costs save insofar as they are of an unreasonable amount or were unreasonably incurred, so that subject to such exceptions, the respondents will be completely indemnified by the applicants for their costs, and, further, that in the event that a sequestration order is made against the applicants based upon the bankruptcy notice the subject of these applications, any part of the costs of these applications that then remain unpaid are to be treated as if that part of the costs were petitioning creditor’s costs.

Associate:

Dated:              29 April 1999