A.P.R.A. v Cougars Tavern Pty Ltd and Ors (No.2)
[2008] FMCA 685
•21 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A.P.R.A. v COUGARS TAVERN PTY LTD & ORS (No.2) | [2008] FMCA 685 |
| PRACTICE & PROCEDURE – Non attendance. |
| Applicant: | AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ACN 000 016 099 |
| First Respondent: | COUGARS TAVERN PTY LIMITED T/AS OPTIONS TAVERN ACN 112 895 619 |
| Second Respondent: | BACKDRAFT (VIC) PTY LIMITED T/AS HEAT NIGHTCLUB ACN 104 340 221 |
| Third Respondent: | MR ROBERT BOTAZZI |
| Fourth Respondent: | MR SIMON BURTONCLAY |
| File Number: | SYG 3574 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 April 2008 |
| Date of Last Submission: | 21 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Hall |
| Solicitors for the Applicant: | Banki Haddock Fiora |
| For the Respondents: | No appearance |
ORDERS
Application dismissed.
Third Respondent to substantive proceedings to pay Applicant to substantive proceedings costs of attendance this A.M. and P.M. assessed in the sum of $1,000.00.
Solicitor John Alderuccio to advise his client by letter of these orders and explain to his client his reasons for non-attendance and provide a copy of such letter to my associate within five days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3574 of 2007
| AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ACN 000 016 099 |
Applicant
And
| COUGARS TAVERN PTY LIMITED T/AS OPTIONS TAVERN ACN 112 895 619 |
First Respondent
| BACKDRAFT (VIC) PTY LIMITED T/AS HEAT NIGHTCLUB ACN 104 340 221 |
Second Respondent
| MR ROBERT BOTAZZI |
Third Respondent
| MR SIMON BURTONCLAY |
Fourth Respondent
REASONS FOR JUDGMENT
In this matter an application was filed on 15 April 2008 by solicitors known as Alderuccio Solicitors of level 3, 552 Lonsdale Street, Melbourne. The orders sought in the application were that the operation and enforcement of the orders made by me on 28 March 2008 be stayed for a further period and that during that period the Third Respondent file and serve an application in accordance with paragraph 31 of my orders.
In the box that is on the front page of the application the hearing date and time of 9.30 am today, 21 April 2008, was clearly written in, in biro. The application was not served upon the solicitors for Australian Performing Right Association Ltd (“APRA”), the applicant in the substantive proceedings, but its solicitor saw that the matter was listed today in the newspaper and attended, through its solicitor, Ms Haddock. There was no appearance for the Third Respondent, Mr Botazzi, the Applicant in what I would prefer to call a notice of motion.
There was some communication between my associate and the solicitors for Mr Botazzi, who told my Associate that they did not know that the matter was on today as they had not received a hearing date from the Court. They later accepted that the hearing date was plainly set out on the front page of the application, or notice of motion, and I agreed to allow the matter to be adjourned until 2.15 today so that Mr Botazzi’s representatives could appear. Later, my Associate was telephoned by these representatives, Alderuccio Solicitors, and told that it would be impossible for them to obtain representation through counsel or an agent this afternoon and they asked whether or not the matter could be dealt with by way of telephone. The Court agreed to this course of action on the basis that the person attending at the telephone was either counsel instructed by the firm of solicitors or a principal of the firm of solicitors. My Associate was told that these conditions would be met.
At 2.15 today or slightly before that time, attempts were made to contact this firm so that the telephone "hook-up" could be arranged. There was no response. Further attempts were made until approximately 2.30 pm. Again there was no response, merely a recorded message advising that the office was closed and providing the Court with details of the office hours. So far as I am aware it is not a public holiday in Melbourne. Whilst I am aware that it is a Jewish holiday of some importance I cannot see from the name of the solicitors that any person of that faith would be representing Mr Botazzi. In any event someone was there this morning.
In the circumstances there is no representation for Mr Botazzi upon his application and I propose to dismiss it. Mr Hall has kindly appeared on behalf of the Applicant and invites me to award the Applicant its costs of appearance both this afternoon and this morning which I believe is an appropriate order to make. The Court is also of the view that Mr Botazzi should be informed of the failure of his solicitors to attend at the telephone and I therefore make the following orders:
(1)Application dismissed.
(2)Third Respondent to substantive proceedings to pay Applicant to substantive proceedings costs of attendance this A.M. and P.M. assessed in the sum of $1,000.00.
(3)Solicitor John Alderuccio to advise his client by letter of these orders and explain to his client his reasons for non-attendance and provide a copy of such letter to my associate within five days.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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