Jilani v Wilhelm [2006] FCAFC 58 (11 May 2006)

Last Updated: 12 May 2006

FEDERAL COURT OF AUSTRALIA

Jilani v Wilhelm [2006] FCAFC 58

CERTIFICATE FOR COSTS






Federal Proceedings (Costs) Act 1981 (Cth) ss 3, 56, 63
Crimes Act 1914 (Cth)






















KELLIE NADINE JILANI v OTTO HEINRICH WILHELM AND MICHAEL PERRY DEMPSEY AND MARKIT PTY LTD (ACN 062 893 707) AND URINDA PTY LTD (ACN 010 561 314)

QUD 175 OF 2005




DOWSETT, JACOBSON and GREENWOOD JJ
11 MAY 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 175 OF 2005

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

BETWEEN:	KELLIE NADINE JILANI APPELLANT
AND:	OTTO HEINRICH WILHELM FIRST RESPONDENT MICHAEL PERRY DEMPSEY SECOND RESPONDENT MARKIT PTY LTD (ACN 062 893 707) THIRD RESPONDENT URINDA PTY LTD (ACN 010 561 314) FOURTH RESPONDENT
JUDGES:	DOWSETT, JACOBSON and GREENWOOD JJ
DATE OF ORDER:	11 MAY 2006
WHERE MADE:	BRISBANE

THE COURT CERTIFIES THAT:

1. Pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) the Attorney-General authorize a payment under that Act to the respondents in respect of:
(a) the costs incurred by the respondents in relation to this appeal; and

(b) any costs paid by the respondents to the appellant pursuant to the order of this Court made on 20 December 2005.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 175 OF 2005

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

BETWEEN:	KELLIE NADINE JILANI APPELLANT
AND:	OTTO HEINRICH WILHELM FIRST RESPONDENT MICHAEL PERRY DEMPSEY SECOND RESPONDENT MARKIT PTY LTD (ACN 062 893 707) THIRD RESPONDENT URINDA PTY LTD (ACN 010 561 314) FOURTH RESPONDENT

JUDGES:	DOWSETT, JACOBSON and GREENWOOD JJ
DATE:	11 MAY 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 In this matter the Court published its reasons on 20 December 2005, allowing the appeal and ordering the respondents on appeal to pay the costs at first instance and of the appeal. Subsequently, the respondents applied pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) for a costs certificate in respect of the appeal. Pursuant to s 63, such a certificate is to state that in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondents in respect of:

(a) the costs incurred by them in relation to the appeal; and

(b) any costs incurred by the appellant in relation to the appeal that have been, or are required to be, paid by the respondents to the appellant in pursuance of an order of the Court, not being costs to which a costs certificate granted under s 7 relates.

2 No question of a certificate pursuant to s 7 arises in this case.

3 Such an order may be made in the case of a federal appeal, which term includes an appeal to the Full Court of a Federal Court from a judgment of the Federal Court constituted by a single judge. See s 3.

4 At first instance, the respondents sought judicial review of a decision of a Queensland magistrate to issue a search warrant under the Crimes Act 1914 (Cth). On 17 December 2004, the respondents applied to Cooper J for leave to amend the application and for discovery. His Honour reserved his decision but died early in 2005, not having delivered it. The parties agreed that Finkelstein J should dispose of the matter ‘on the papers’.

5 Counsel for the appellant indicated in the course of argument on appeal that it was likely that the grounds of appeal had arisen, at least partly, because of the circumstances in which his Honour determined the matter, namely on the papers and without the benefit of oral argument. We agree. The primary judge seems not to have considered a number of the appellant’s submissions. His Honour also drew inferences from facts which this Court, with the benefit of argument, has been unwilling to draw. Further, his Honour appears to have, himself, raised the question of bad faith in obtaining the warrant, a matter which was not raised by the parties. Had his Honour had the opportunity to explore the matter with counsel, these problems may have been avoided. They are attributable to the unfortunate circumstances surrounding the death of Cooper J.

6 We certify pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) that in the Court’s opinion, it would be appropriate for the Attorney-General to authorize a payment under that Act to the respondents in respect of:

(a) the costs incurred by the respondents in relation to this appeal; and

(b) any costs paid by the respondents to the appellant pursuant to the order of this Court made on 20 December 2005.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Jacobson and Greenwood.

Associate:

Dated: 11 May 2006

Counsel for the Appellant:	Mr R Derrington SC
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondents:	Mr P Hack SC Mr P Bickford
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	20 December 2005
Date of Judgment:	11 May 2006