Barghouthi v ING Custodians

[2004] FCA 478

FEDERAL COURT OF AUSTRALIA

Barghouthi v ING Custodians [2004] FCA 478

RAMZI BARGHOUTHI v ING CUSTODIANS PTY LIMITED AND ORS
N 505 of 2002

ALLSOP J
19 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 505 of 2002

BETWEEN:

RAMZI BARGHOUTHI
APPLICANT

AND:

ING CUSTODIANS PTY LIMITED
FIRST RESPONDENT

ING LIFE LIMITED
SECOND RESPONDENT

PLESTEL PTY LIMITED
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

19 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Order 53 rule 20 of the Federal Court Rules, the proceedings be dismissed.

2.The applicant pay the first and second respondents’ costs of the notice of motion and the amended notice of motion moved on today.

3.The applicant pay the first and second respondents’ costs of the proceedings incurred otherwise than already the subject of an existing costs order.

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	N 505 of 2002

BETWEEN:

RAMZI BARGHOUTHI
APPLICANT

AND:

ING CUSTODIANS PTY LIMITED
FIRST RESPONDENT

ING LIFE LIMITED
SECOND RESPONDENT

PLESTEL PTY LIMITED
THIRD RESPONDENT

JUDGE:	ALLSOP J
DATE:	19 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a motion in the form of an amended notice of motion wherein the first and second respondents move, pursuant to Order 53 rule 20 of the Federal Court Rules, to have the proceedings dismissed as to the whole of the relief claimed by the applicant against the first and second respondents.

2. The grounds of the amended notice of motion are as follows:

   1.   Paragraphs 2 and following of the Notice of Appeal filed 31 May 2002 were struck out by order of his Honour Justice Allsop on 7 November 2003. No substantive ground of appeal or other pleading remains on foot.

   2.   The Applicant has not taken advantage of the extension of time granted by his Honour Justice Allsop on 19 December 2003 for leave granted on 7 November 2003 to serve a motion annexing a draft amended notice of appeal.

   3.   In the circumstances which have happened the Applicant has failed to prosecute proceedings diligently or at all.

3. As can be ascertained by reference to Order 53 and the initiating process in the matter, this matter was begun by way of a purported appeal under s. 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth).  My judgment of late 2003 set out the reasons why I struck out the whole of the notice of appeal save for paragraph 1.

4. In the orders I made on 7 November I contemplated leave being given to the applicant to amend his notice of appeal to cure the difficulties, which I had set out in my reasons.  Indeed, in my reasons, to the extent I thought it appropriate, I indicated areas where the matter might be redrafted so as not to suffer the defects otherwise contained in the existing document.

5. I extended that time on 19 December 2003.  The applicant appeared on that day as he had appeared on 7 November.  I indicated to the applicant on those days that if he was to pursue this case against any of the respondents he should turn his mind to an appropriate reformulation of his case.

6. I note, as I have on a number of occasions, that the third respondent Plestel Pty Limited has not as yet been served as far as the Court is aware and the litigation for the last two years or thereabouts has been conducted by the applicant against the first and second respondents only.

7. The matter was before the Court on 24 February 2004, a date set down in the presence of the applicant on 19 December.  The applicant made no appearance on that occasion.  The first and second respondents indicated on that day a desire to move the Court to have the appeal dismissed for want of prosecution.  On that day, I indicated that an appropriate regime for service of that motion should be formulated and on 26 February 2004 short minutes of order were filed in the Federal Court Registry conforming with orders I made in chambers after hearing Ms Heath in court on 26 February.  That regime was that service of the notice of motion and supporting affidavits be effected by:

   (a)     sending a copy by prepaid post to PO Box 213 Dulwich Hill NSW 2203;

   (b)the Registrar, by sending a copy by registered post to the Applicant's address for service last identified on the court file;

   (c)one advertisement of the date of hearing and orders sought on the motion in each of the Sydney Morning Herald and a local newspaper in the Lakemba area before 30 March 2004; and

   (d)hand delivery to any address notified to the Court as an address of the applicant as contained in the Court file.

8. An affidavit of Jonathan Gregson Melville Hunt of the solicitors, Minter Ellison acting for the first and second respondents is read before me today and I take that affidavit as read.  That affidavit deposes to a compliance with the orders that I made on 26 February.

9. It also deposes to service of the amended notice of motion and the affidavits read today upon the applicant at all relevant addresses, which have in the last year or thereabouts come to the attention of the respondents by their participation in these proceedings.  The advertisements, which I ordered to be made on 26 February in The Sydney Morning Herald and a local newspaper in Lakemba have been effected.

10. Further, Mr Hunt has attempted to contact the applicant on several telephone numbers, which are the contact numbers for the applicant obtained from Minter Ellison's file as well as a White Pages on line search under the name “Simon”.  The name “Simon” is apparently the name under which Mr Barghouthi or the applicant is currently known.  A White Pages on line search of the name Barghouthi did not produce any telephone numbers.  Mr Hunt was unable to contact Mr Barghouthi or Mr Simon, as he is now apparently known, on any of the numbers he rang. 

11. On the last occasion, I made an order for costs from a time after the filing of the original notice of appeal until the date of the order.  The dismissal of the proceedings under Order 53 rule 20 raises the question as to the balance of the costs of the proceedings.

12. I am satisfied that notice has been given sufficient for the invocation of Order 53 rule 20. I make the following orders:

    1)Pursuant to Order 53 rule 20 of the Federal Court Rules, the proceedings be dismissed.

    2)The applicant pay the first and second respondents’ costs of the notice of motion and the amended notice of motion moved on today.

    3)The applicant pay the first and second respondents’ costs of the proceedings incurred otherwise than already the subject of an existing costs order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated:             10 May 2004

Counsel for the Respondent:	Ms V Heath
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	19 April 2004
Date of Judgment:	19 April 2004