Barghouthi v ING Custodians Pty Ltd

[2004] FCA 141

FEDERAL COURT OF AUSTRALIA

Barghouthi v ING Custodians Pty Ltd [2004] FCA 141

RAMZI BARGHOUTHI AND ING CUSTODIANS PTY LTD AND ORS
N 505 of 2002

ALLSOP J
24 FEBRUARY 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

JUDGE:

ALLSOP J

DATE OF ORDER:

24 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Respondents' motion for dismissal of the proceedings to be filed and served in accordance with these orders by 11 March 2004.

2.Service of the notice of motion and supporting affidavits to 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;

c)in respect of (b), Order 7 rule 11 to apply in the event that there is evidence that the document is not delivered;

d)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; and

e)

hand delivery to any address notified to the Court as an address of the applicant as contained in the Court file

3.The Respondents' notice of motion for dismissal of the proceedings to be returnable before Allsop J on 19 April 2004 at 4:15 pm.

4.

The Applicant to pay the Respondents' costs of 24 February 2004 (if this was not comprehended in his Honour's orders as to costs made on 24 February 2004).

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

JUDGE:	ALLSOP J
DATE:	24 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter I made orders on 7 November 2003 in which I struck out virtually all of the notice of appeal.  I do not rehearse my reasons for that order.  I gave the applicant leave to replead the notice of appeal.  The matter has come before me on a number of occasions since then in which I have given further time to the applicant to replead the matter.  There was a measure of judicial advice in the reasons for judgment which has not been taken up.

2. I indicated to the parties that I will consider the question of costs of the hearing to date.  The first and second respondents (being the only respondents thus far served) filed in Court on 19 December 2003 an outline of submission as to costs.  Briefly and fairly straightforwardly, they seek their costs of the proceedings to date from 29 October 2002.  If there was some indication that there may be some reason why that should not occur, I might hesitate to determine the totality of the costs so far.  However, the submissions from the applicant filed in the Registry on 9 February 2004 are, with respect, less than coherent.  No sensible reason has been given why the respondent should not have their costs   .

3. The applicant has not appeared today; he was present when the matter was set down for today.  I indicated on the last occasion I would give a judgment as to costs.

4. The respondents seek their costs from the time at which Mr Barghouthi has prosecuted this matter in October 2002.  The matter began in May 2002.  An order under Order 80 was made.  I referred to this in my reasons for judgment last November.  In all the circumstances, given the nature of my reasons and the apparent unwillingness or inability of Mr Barghouthi to proceed with the matter after November 2003, I see no reason why he should not pay the costs of the respondents from 29 October to date.  I order that the applicant pay the costs of the first and second respondents incurred after 29 October 2002.

5. The respondents have indicated today that they wish to move to have the matter disposed of once and for all in the light of the recent inactivity of the applicant.  The respondents have provided a draft minute of order providing for service of a relevant notice of motion and affidavit in this regard and I will make orders that I think are appropriate for the hearing of the notice of motion on 19 April at 4.15 pm.  I make orders accordingly.

6. It is not simply a matter of the application having been struck out.  As is plain from my reasons in November, little of what has thus far occurred could be seen to be usefully salvagable if the proceedings were to be somehow reconstituted in a way conformable with the rules of Court and relevant legislation.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            2 March 2004

The applicant appeared in person.
Counsel for the Respondents:	Ms Heath
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	24 February 2004
Date of Judgment:	24 February 2004