Bethcor Pty Ltd v GDC Global Digital Cash Pty Ltd
[2012] FMCA 832
•10 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BETHCOR PTY LTD & ORS v GDC GLOBAL DIGITAL CASH PTY LTD & ORS | [2012] FMCA 832 |
| PRACTICE AND PROCEDURE – Non-compliance with court orders – summary judgment application – costs. |
| Federal Magistrate Act 1999 (Cth), s.79 Federal Magistrate Court Rules 2001 (Cth), rr.9.04, 13.032A(2)(b)(iii), Schedule 1, Part 1 |
| First Applicant: | BETHCOR PTY LTD |
| Second Applicant: | MEGATOP NOMINEES PTY LTD ACN 079 053 197 |
| Third Applicant: | JEAN BENNETT |
| First Respondent: | GDC GLOBAL DIGITAL CASH PTY LTD |
| Second Respondent: | GREGORY PATRICK EDWARD HANNAN |
| Third Respondent: | RON JOHN LUCERNE-KNIGHT |
| File Number: | PEG 106 of 2012 |
| Judgment of: | Lucev FM |
| Hearing date: | 10 September 2012 |
| Date of Last Submission: | 10 September 2012 |
| Delivered at: | Perth |
| Delivered on: | 10 September 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr W Doray |
| Solicitors for the Applicants: | Doray Legal |
| Counsel for the First Respondent: | Mr J Rivett |
| Second Respondent: | In person |
| Third Respondent: | In person |
ORDERS
The time for compliance with order 2 of the Court’s orders of 13 August 2012 be extended to 17 September 2012.
The time for compliance with order 3 of the Court’s orders of 13 August 2012 be extended to 17 September 2012.
The matter be adjourned to 24 September 2012 at 2:00pm (WST), 4:00pm (EST), for hearing, if necessary, and further directions.
The First Respondent, GDC Global Digital Cash Pty Ltd, pay the Applicant’s costs for 13 August 2012 and today in the sum of $396.00 by 17 September 2012.
The Second Respondent, Gregory Patrick Edwin Hannan, pay the Applicant’s costs for 13 August 2012 and today in the sum of $132.00 by 17 September 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 106 of 2012
| BETHCOR PTY LTD |
First Applicant
| MEGATOP NOMINEES PTY LTD ACN 079 053 197 |
Second Applicant
| JEAN BENNETT |
Third Applicant
And
| GDC GLOBAL DIGITAL CASH PTY LTD |
First Respondent
| GREGORY PATRICK EDWARD HANNAN |
Second Respondent
| RON JOHN LUCERNE-KNIGHT |
Third Respondent
REASONS FOR JUDGMENT
(Edited extempore reasons)
The Court today sits in a directions hearing, which was listed on the last occasion the parties were before the Court on 13 August 2012, specifically because of the orders made by the Court on that occasion that certain things be done, in particular by the first and second respondent, in terms of orders 2 and 3 of the Court’s order of 13 August 2012. Those orders were made against the background of an application made on 15 May 2012, supported by a statement of claim, in relation to which the second and third respondents filed a defence and response each on 25 May 2012.
At the first directions hearing on 28 May 2012, there were orders made for all parties to file genuine steps statements and for the matter to go to mediation before a Registrar of this Court. Subsequently, only the applicants and the third respondent, Mr Lucerne-Knight, complied with the 28 May 2012 orders and filed genuine steps statements. The first and second respondents did not file genuine steps statements.
The matter came back before the Court on 13 August 2012, and on that occasion one issue specifically discussed was the appearance by the first respondent and the requirement, pursuant to r.9.04 of the Federal Magistrates Court Rules2001 (Cth),[1] for the first respondent to appear by a lawyer. Following that directions hearing, which was adjourned and reconvened on the same day at the request of the parties, the Court made the following two orders:
[1] “FMC Rules”
2. The First Respondent file and serve a response, defence and a genuine steps statement by a lawyer pursuant to Regulation 9.04 of the Federal Magistrates Rules 2001 (Cth) by 27 August 2012, and if the First Respondent fails to comply, the Applicant may move for summary judgment at the next directions hearing.
3. The Second Respondent file and serve a genuine steps statement by 20 August 2012.
The Court also notes that notwithstanding that the first respondent was required to file and serve a response, defence and genuine steps statement by the specified time, that the respondents were also given leave to file and serve amended defences by 3 September 2012.
Neither order 2, nor order 3, of the Court’s orders of 13 August 2012 has been complied with by the first respondent. The first respondent has failed to comply with the Court’s order of 28 May 2012 and also the 13 August 2012 orders with respect to the filing of a genuine steps statement, and the filing of a response and defence to be filed by a lawyer. In saying that, the Court notes that a response and defence were filed by the first respondent on 27 August 2012, but the response and defence are no more than, as it appears to be, exact copies of responses and defences filed by the second and third respondents, Mr Hannan and Mr Lucerne-Knight, on 25 May 2012. No independent thought, consideration or evaluation has gone into the response and the defence filed on 27 August 2012 from the point of view of the corporation, which is the first respondent.
Furthermore, the documents, patently, have not been prepared or filed by a lawyer. Mr Rivett, who now appears for the first respondent and was not previously involved in the preparation of the documents, now seeks leave to amend that defence. In view of the failure to comply with order 2, the first respondent moves for summary judgment as permitted by order 2 of the orders of 13 August 2012. The Court also notes, again, that the second respondent has also failed to comply with the orders of 13 August 2012 by failing to file a genuine steps statement.
There is no evidence before the Court in relation to today’s directions hearing. There is no evidence that the lawyer now on the record, Mr John Rivett, who is, and the Court having been told and accepts, a barrister acting without assistance from a firm of solicitors, has taken any steps to ensure compliance with the Court’s orders of 13 August 2012 in the two weeks since a Notice of Party Acting has been filed indicating he was appearing. It is a matter of some concern to the Court, that a lawyer particularly one who is a barrister, has not ensured in that time that the party for whom he acts has actually complied with the Court’s previous orders.
A question of summary judgment arises, and there is no doubt that the first respondent is in default under r.13.03A(2)(b)(iii) of the FMC Rules and has failed to comply with the Court’s orders, at least of 13 August 2012, with respect to the filing of a genuine steps statements and filing of a response and defence prepared by a lawyer in accordance with r.9.04 of the FMC Rules. The documents which have been filed are, in reality, as the Court observed earlier, nothing more than cuts-and-pastes of earlier documents which have not been prepared by a lawyer and which do not comply with order 2 of the Court’s orders of 13 August 2012.
The Court has considered whether it is appropriate at this point in time to grant summary judgment to the applicant against the first respondent. The Court has decided that it is not appropriate. This is the first occasion, that the issue has specifically arisen, and the Court further notes that, at the very least the first respondent has now taken steps to involve a lawyer, albeit a barrister acting without a firm of solicitors engaged, to assist with the matter. It is to be hoped that legal representation will enable the matter to be put on a proper footing sooner rather than later.
In any event, the Court is of the view that any particular prejudice which has been suffered by the applicants can be partially resolved at least by an award of costs at this stage, small as they are, and therefore, the Court will not order summary judgment against the first respondent, but will make a form of order which preserves the ability of the applicant to move for summary judgment against the first respondent in the event of further non-compliance with an extended timeframe.
As will be evident from what the Court said during the course of the submissions of the parties, that time frame ought to be limited given that the first respondent ought to have filed a response and defence by 29 May 2012 and then, pursuant to the Court’s 13 August 2012 orders, ought to have filed a response and defence prepared by a lawyer by 27 August 2012 and has, therefore, had something in the order of approximately two and a half months to file a response and a defence and a similar amount of time also to file a genuine steps statement, but has not done so.
There will, therefore, be a further seven days given to the first respondent from today to comply with order 2 of the Court’s 13 August orders, which in practical terms will mean that they have had an additional three weeks to comply with that order. The Court will order that time for compliance with order 2 of the Court’s 13 August 2012 orders be extended to 17 September 2012. That extension will still mean that the applicant may move for summary judgment if there is no compliance by the first respondent.
For similar reasons, the time for compliance with order 3 of the Court’s 13 August 2012 orders requiring the second respondent to file and serve a genuine steps statement will also be extended to 17 September 2012.
The Court has noted the request for additional time made by Mr Rivett. Because this matter has been progressing in the way that the Court has outlined, the Court is of the view that the lack of progess, combined with the failures of the first respondent, necessitate that the time be limited in fairness to all of the parties and the Court and in particular of course the applicant who presses this application. There will, therefore, be orders as indicated.
There will be a further order that the matter be adjourned to 2:00pm (WST); 4:00pm (EST), on 24 September 2012 for hearing of any summary judgment application, if necessary, and further directions.
During the course of the submissions which were made, the Court inquired as to costs and heard very brief submissions with respect to costs. It suffices to observe that the Court has a broad discretion under s.79 of the Federal Magistrates Act 1999 (Cth) with respect to costs. In the circumstances of this case, as the Court has just outlined, it is apparent that the costs of today have been incurred because that the first and second respondents have not complied with the Court’s orders of 13 August 2012 and with the rules of the Court with respect to the filing of documents, and the legislative requirements with respect to the filing of a genuine steps statement.
That failure comes on top of the reason for the 13 August 2012 directions hearing being essentially because there had at that point in time been non-compliance with the relevant rules and legislation with respect to the filing of those documents mentioned. It is, therefore, in the Court’s view, appropriate that the first and second respondents share responsibility for the costs of the directions hearings of 13 August 2012 and today, both of which attract an amount of $264 for each mention under Part 1, Schedule 1 of the FMC Rules.
In the circumstances, given the nature of the various non‑compliances, the Court is of the view that there ought to be a 75/25 split between the first respondent and second respondent with respect to those costs. So there will be additional orders that the first respondent, Global Digital Cash Pty Ltd, pay the applicant’s costs of 13 August 2012 and today in the sum of $396.00 to be paid by 17 September 2012, and there will be an order to similar effect, that the second respondent, Gregory Patrick Edward Hannan, pay the applicant’s costs of 13 August 2012 and today in the sum of $132 to be paid by 17 September 2012. There will be orders in the terms that the Court has indicated.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate:
Date: 13 September 2012
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