Atkins v Master Builders Association of NSW

[2007] FCA 554

FEDERAL COURT OF AUSTRALIA

Atkins v Master Builders Association of NSW [2007] FCA 554

KEITH RAYMOND ATKINS V MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES
NSD 1588 OF 2006

JACOBSON J
12 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1588 OF 2006

BETWEEN:	Keith Raymond Atkins APPLICANT
AND:	Master Builders Association of NSW RESPONDENT
JUDGE:	Jacobson J
DATE OF ORDER:	12 April 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant pay the respondent’s costs of the proceedings, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1588 OF 2006

BETWEEN:	Keith Raymond Atkins APPLICANT
AND:	Master Builders Association of NSW RESPONDENT

JUDGE:	Jacobson J
DATE:	12 April 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM JUDGMENT)

1. The Master Builders Association moves the Court for an order under Order 20 rule 2 of the Federal Court Rules dismissing these proceedings upon the ground that no reasonable cause of action is disclosed.  In order to deal with the application it is necessary for me to set out the history of the proceedings. 

2. The proceedings were commenced by an application filed on 21 August 2006, accompanied by a document entitled “Affidavit/Statement of Claim”. 

3. The allegations in the statement of claim, prepared by Mr Atkins personally, are lengthy.  I do not propose to set them out in any detail.  They relate to the publication by Mr Atkins of a book called “The Bathroom Book”.  Mr Atkins states in the statement of claim that he is a licensed builder and he claims to have used his expertise in waterproofing to publish the book.

4. He also states that the Master Builders Association commenced a defamation campaign against him.  Although the campaign is said to have started as early as 1994, the gravamen of the allegations seem to relate to events which are said to have occurred in 2003 and 2004.  Additionally, the statement of claim refers to a publication endorsed by the Master Builders Association entitled “Guide to Internal Wet Area Waterproofing”.  Mr Atkins claims that the guide does not acknowledge certain research and development work undertaken by him and said to have been used as sources of information by the author of the guide.

5. Although there was no attempt to link the allegations in the statement of claim to the Trade Practices Act 1974 (Cth) it may be that what Mr Atkins had in mind was to claim damages under s 82 of the Act for misleading and deceptive conduct. However, as I have said, no such cause of action is alleged in the document. Mr Atkins claims damages of $5 million. He claims that the actions of the Master Builders Association have damaged his ability to hold himself out as an expert in the waterproofing educational market and that his reputation has been damaged. Other claims of loss and damage are also set out, all of which are said to have resulted from the actions of the Master Builders Association to which I have referred.

6. On 8 September 2006, the Master Builders Association filed a notice of motion seeking to have the statement of claim struck out and the proceedings dismissed summarily. 

7. At the first directions hearing held on 15 September 2006, Mr Atkins appeared in person and told the Court that he would have a barrister appear for him on the next occasion.  The proceedings were stood over to 9 November 2006 and directions were made permitting Mr Atkins to serve a draft amended statement of claim before the next directions hearing. 

8. On 7 November 2006, a document dated 30 October 2006 entitled “Amended Statement of Claim” was served on the respondent by facsimile. 

9. The Master Builders Association's motion was listed for hearing on 18 December 2006.  At the hearing, Mr Bruce Levet of counsel appeared for Mr Atkins.  Mr Levet informed the Court that he was instructed by a firm of solicitors, Kingham & Associates, of Surry Hills.  He informed the Court that he had instructions and that the solicitors would file a notion of appearance, although no notice of appearance by that firm has ever been filed.  That, of course, is not a criticism of Mr Levet.

10. Mr Levet informed the Court that he had given advice on the statement of claim as it then stood and that he could not support the pleading without further time within which to consider the matter.  He said that he required a period of some weeks within which to obtain instructions from Mr Atkins and that unless he received instructions and evidence from his client to support certain allegations which Mr Atkins wished to make, he could not properly discharge his ethical obligations to the Court.  That is to say, what he required was a period of about four weeks within which to obtain a proper evidentiary basis to plead a statement of claim.  Mr Levet consented, plainly upon instructions from his client, to the statement of claim filed on 21 August 2006 being struck out.  The matter was stood over to 22 February 2007 and Mr Atkins was directed to serve any amended statement of claim by 19 February 2007.

11. On 19 February 2007, a document entitled “Amended Statement of Claim” was sent directly to my chambers.  Although it includes his name and contact details as an address for service, it appears that Mr Levet had no involvement with the document and that he was not provided with any further evidence to enable him to discharge his ethical obligations to be able to plead an arguable statement of claim. 

12. The hearing of the remainder of the motion, previously set down for 22 February 2007, was later changed to 15 March 2007.  On that date Mr Warren Andrews of counsel appeared for Mr Atkins on direct instructions from his client.  After some discussions which took place during the morning, Mr Andrews sought leave to withdraw as counsel and I granted leave to him to do so.  Mr Atkins then addressed me in person.  He informed me that he had a solicitor who would help him and that he would be obtaining a new barrister to represent him.  He sought additional time to file an amended statement of claim.  I made an order directing him to serve any such amended statement of claim by 10 April 2007.

13. The precise terms of the orders I made on 15 March 2007 were as follows:

    “[1] The Applicant serve a further amended statement of claim (incorporating particulars of the allegations he wishes to make upon the basis of the evidence he hopes to obtain from nominated witnesses), on or before 10 April 2007.

    [2] The proceedings be listed for further directions on 12 April 2007 at 9.30am.”

14. On 10 April 2007, a further document entitled “Affidavit/Statement of Claim, Breach of S.52 of Trade Practices Act (Cwlth) 1974” was faxed to my chambers.  The document consisted of four numbered paragraphs and five unnumbered paragraphs.  There were two pages of a schedule setting out Mr Atkins’ claim for damages of $5 million.  The document stated that the pleading was prepared by Mr Atkins.

15. It also stated as follows:

    “Future Address for Service:

    C/- Sue Chrysanthou – Barrister
    Angela Bowne – Senior Counsel
    Blackstone Chambers
    Level 62, MLC Tower, Sydney
    Telephone: [phone]

    Facsimile: [phone]”

16. A number of documents and an affidavit were attached. 

17. When the matter was called on for directions this morning, Mr Colman of counsel for the Master Builders Association sought to proceed with the remainder of the respondent’s motion.  Mr Atkins appeared in person and informed me that his counsel could not appear today.  I stood the matter down to 2.15pm.  At that time, Ms Thornton of counsel appeared for the applicant.  She did so in the best traditions of the bar by appearing on very short notice.  She informed me that she has been briefed with the intention of being lead on a future occasion by Ms Bowne SC. 

18. It is plain that the document which was faxed to my chambers on 10 April 2007 does not disclose any cause of action whatsoever.  It consists of a short narrative about the authorship of the Bathroom Book, it refers to the Master Builders Association’s alleged instigation of “intimidation of witnesses”, and a number of persons are named and said to have been intimidated. 

19. Ms Thornton sought an adjournment of six weeks within which to file a further amended statement of claim.  She told me quite properly that she and senior counsel would need that length of time within which to obtain instructions from Mr Atkins to be in a position to prepare a statement of claim.  Ms Thornton submitted that the facts disclosed in the various statements of claim that had been put before the Court may give rise to causes of action, and that ordinarily costs would be determined after a final hearing of the case, but that her client would incur costs of the entire proceedings if they were dismissed summarily.

20. However, it seems to me that the proper resolution of the matter and the proper exercise of my discretion turns upon a weighing of the competing hardships which will be suffered by either Mr Atkins or the Master Builders Association. 

21. It is plain from the history of the matter that the Master Builders Association has incurred considerable costs to date, and that it has incurred those costs in circumstances in which no reasonable cause of action has been disclosed in any statement of claim put before the Court.  Thus, the position is that Mr Atkins seeks a further indulgence from the Court, notwithstanding his failure to date to propound a properly arguable cause of action and to leave the Master Builders Association to bear the cost of his own failures.

22. It seems to me that the balance falls clearly on the side of the Master Builders Association.  There is no reason why it should be left in a position where it has to incur the consequences of Mr Atkins’ own failure to put forward a pleading which complies with the ordinary rules.  The prejudice to which Mr Atkins points is a concern about his own costs liability but it seems to me that he must bear the costs of his own failures rather than to leave the Master Builders Association in a position where it continues to suffer possible cost consequences arising from the continuation of proceedings which to date have not been shown to have any arguable basis whatsoever.

23. I should point out that these proceedings are not the first proceedings brought in this Court by Mr Atkins against the Master Builders Association.  In 2005, Mr Atkins brought proceedings which were dealt with by Lindgren J in a judgment dated 17 February 2006; see Atkins v Masters Builders Association of NSW [2006] FCA 142. His Honour dealt with a claim set forth in a statement of claim which was in similar terms to the original statement of claim filed in the present proceedings. His Honour came to the following conclusion at [14]:

    “All things considered, and, in particular, having regard to the fact that this is the third (or fourth attempt) by Mr Atkins to plead claims cognisable at law, the appropriate course is to dismiss the proceeding under Order 20 rule 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed.”

24. His Honour observed at [15] that this was “not an adjudication on the merits of any claim which Mr Atkins may have” and the dismissal did not prevent Mr Atkins from commencing a fresh proceeding.  His Honour sounded a warning which Mr Atkins does not seem to have accepted, namely that Mr Atkins have thorough and considered legal advice in relation to his undoubtedly strongly felt grievances against the Master Builders Association. 

25. The present proceedings as propounded in the various documents that have been put before the Court consist of no more than a narrative of complaints which originated in the documents filed in the proceedings before Lindgren J.  The allegations have varied over time.  The latest form of the statement of claim is different from that which was before Lindgren J, but in fact it is abbreviated in its terms and now contains no reference to the claims of defamation which appeared to underlie earlier complaints made by Mr Atkins.

26. Indeed, the present statement of claim, unlike the document filed in the proceedings before Lindgren J, does not seek to make any attempt to link the narrative of facts to any cause of action under the Trade Practices Act. 

27. If indeed Mr Atkins does have a claim for damage under s 82 of the Trade Practices Act, the factual matters upon which he apparently intends to rely occurred in 2003 and 2004.  He therefore has sufficient time within which to plead any further cause of action without being barred by the six year limitation contained in s 82(2) of the Act.

28. It seems to me that the proper exercise of my discretion therefore is to make an order under Order 20 rule 2 of the Federal Court Rules dismissing the proceedings with costs.   

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: 

Dated:             12 April 2007

Counsel for the Applicant:	Ms J Thornton
Counsel for the Respondent:	Mr G Colman
Solicitor for the Respondent:	MBA Lawyers
Date of Hearing:	12 April 2007
Date of Judgment:	12 April 2007