Checked-Out Pty Ltd v Williams

[2006] FCA 1154

FEDERAL COURT OF AUSTRALIA

Checked-Out Pty Ltd v Williams [2006] FCA 1154

CHECKED-OUT PTY LIMITED (ACN 071 965 798) v DEBORAH JEAN WILLIAMS & ORS

NSD1808 OF 2005

EMMETT J

28 AUGUST 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1808 OF 2005

BETWEEN:

CHECKED-OUT PTY LIMITED (ACN 071 965 798)
Applicant

AND:

DEBORAH JEAN WILLIAMS
First Respondent

WAYNE THOMAS COOK
Second Respondent

JOSEPH MILLER WILLIAMS
Third Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	28 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the Applicant to file a Notice of Discontinuance.

2.Mr JR Young, barrister, be informed of Order 1.

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	NSD1808 OF 2005

BETWEEN:

CHECKED-OUT PTY LIMITED (ACN 071 965 798)
Applicant

AND:

DEBORAH JEAN WILLIAMS
First Respondent

WAYNE THOMAS COOK
Second Respondent

JOSEPH MILLER WILLIAMS
Third Respondent

JUDGE:	EMMETT J
DATE:	28 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Proceeding NSD169 of 1999 (‘the Main Proceeding’) has had a somewhat chequered existence in the Court.  The Main Proceeding ultimately involved a claim by the applicant, Checked-Out Pty Ltd (‘Checked-Out’), against Eagle Eye Inspections Pty Ltd (‘Eagle Eye’) officers of that company and a solicitor, alleging infringement of copyright.  During the currency of the Main Proceeding, Checked-Out commenced a further proceeding, NSD 1808 of 2005 (‘the Contempt Proceeding’).  The Contempt Proceeding involves charges of contempt against Joseph Williams, Wayne Cook and Deborah Jean Williams, three of the respondents in the Main Proceeding, by reason of alleged failure to comply with directions and orders made in the Main Proceeding. 

2. Pro bono counsel were appointed pursuant to Order 80 to represent the applicant in the Main Proceeding and following that appointment the Main Proceeding has now been settled.  Earlier today I made orders by consent of the parties to that proceeding.  Checked-Out now seeks the Court’s leave, pursuant to Order 22 rule 2(1)(d) of the Federal Court Rules, to discontinue the Contempt Proceeding. 

3. While the application and an affidavit in the Contempt Proceeding were served on the respondents to that proceeding and counsel appeared on their behalf at a directions hearing, no appearance has been filed by the respondents.  Ms Anna Wilczak, the only director of Checked-Out, was named as an applicant in the Contempt Proceeding when it was commenced.  At a directions hearing on 1 November 2005, Edmonds J stood the matter over for directions on 8 November 2005.  On that day, Edmonds J gave directions for an application to be filed seeking leave for the applicant to be represented by Ms Wilczak and the matter was stood over to 6 December 2005.  On 1 December 2005, a written submission was filed on behalf of the respondents by Mr JR Young of counsel, opposing the grant of leave to Ms Wilczak to represent Checked-Out. On 6 December 2005, Edmonds J ordered that Ms Wilczak cease to be a party and that the application continue with Checked-Out as the only applicant.  No further date for a directions hearing appears to have been fixed and, as I have said, no appearance has been filed. 

4. In the course of a hearing relating to the Main Proceeding, senior counsel for Checked Out in the Main Proceeding sought leave to file a notice of discontinuance of the Contempt Proceeding, signed by Ms Wilczak.  The Contempt Proceeding is a purely adjectival proceeding, in the sense that it arises out of the Main Proceeding.  There does not appear to be any utility in continuing with the Contempt Proceeding if Checked-Out no longer seeks any of the relief claimed in it.  It is appropriate, therefore, to give leave to discontinue the Contempt Proceeding. 

5. In the absence of any party seeking an order as to costs, no costs are payable.  While the Rules provide for liability to pay costs in certain circumstances of discontinuance, there is no automatic provision, where a proceeding is discontinued with the leave of the Court, relating to the payment of costs. 

6. The Contempt Proceeding was not actually listed for hearing today although, even if it had been, there is no basis for notification of the respondents, since they have not appeared in the proceeding.  In the circumstances I consider that it is appropriate to grant leave to discontinue.  I do not propose to make any order as to costs.  However, it is appropriate that that order be notified to Mr Young. 

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

Associate:

Dated:        29 August 2006

Counsel for the Applicant:	Mr NJ Williams SC and Ms A Mitchelmore
Date of Hearing:	28 August 2006
Date of Judgment:	28 August 2006