Club Marine Limited v Rubock

[2019] FCCA 439

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLUB MARINE LIMITED v RUBOCK & ANOR [2019] FCCA 439

Catchwords:
ADMIRALTY – Application in a case for costs pursuant to applicant’s application for default judgment – costs application granted – matter transferred to Darwin Registry.

Legislation:

Marine Insurance Act 1909 (Cth)

Applicant: CLUB MARINE LIMITED

First Respondent: ERIC RUBOCK

Second Respondent: KYLIE WILKINS

File Number: SYG 3552 of 2017

Judgment of: Judge Dowdy

Hearing date: 8 February 2019

Delivered at: Sydney

Delivered on: 8 February 2019

REPRESENTATION

Counsel for the Applicant: Ms D. Tang of Counsel

Solicitors for the Applicant: HWL Ebsworth

The Respondents appeared in person via telephone.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The First and Second Respondents are to pay the costs of and incidental to the Applicant’s Application in a Case for default judgment, filed on 13 March 2018, in the sum of $27,837.50.

2. The proceeding be transferred to the Darwin Registry of this Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3552 of 2017

CLUB MARINE LIMITED

Applicant

And

ERIC RUBOCK

First Respondent

KYLIE WILKINS

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. This proceeding commenced on 17 November 2017 by way of an Application and a Statement of Claim. 

2. The claim by the Applicant is for costs and expenses in the sum of at least $44,795.58 for the salvage, towage and storage costs of a 1956 timber pearling lugger known as the “Anniki”, which apparently sank on 17 June 2017 in the Northern Territory.

3. It is claimed by the Applicant that at all material times the First and Second Respondents were the registered owners of that vessel, and that the Applicant was the insurer of it under a policy of marine insurance pursuant to the Marine Insurance Act 1909 (Cth). It is further claimed that the vessel sank because of its unseaworthiness, and lack of repair and maintenance.

4. The Respondents were each served with the initiating process, but unfortunately completely ignored the existence of the proceeding. There was, at a later period of time, an Amended Statement of Claim filed and served, and in the result, because of the non-responsiveness of the Respondents, the Applicant filed an Application in a Case seeking default judgment on 13 March 2018. As at that date, Defences from the Respondents had been due, but not filed and served, for a period of some four months.

5. The first response and attention by the Respondents to this proceeding was on 31 May 2018, the day before the hearing of the default judgment application.  Unfortunately, even after their first attention to the matter on that date, the Respondents have continued to protract the proceedings and deal with it unsatisfactorily, without achieving any real result, despite my own personal warnings and exhortations at various directions hearings which have been held.

6. Ultimately, the Second Respondent did file a Defence, which the Applicant was prepared to consider as raising an arguable defence, and then the Applicant, very reasonably, acceded to the Respondents’ request that the proceeding be transferred to the Darwin Registry of this Court, and agreed to have its Application for default judgment dismissed, which it was, by me, on 23 November 2018.

7. The First Respondent has still not, in my view, filed a proper Defence to the Applicant’s claims.

8. In these circumstances, the Applicant asks for the costs of the default judgment application. In my view, at all times the Applicant has acted reasonably in relation to that application and also generally, in terms of the litigation as a whole. On the other hand, at all times the Respondents have acted unsatisfactorily and unreasonably in connection with the proceeding and have exhibited neglect, delay and inattention to the proceeding.

9. Accordingly, I consider that in the circumstances the Applicant is entitled to the wasted costs of the application for default judgment.

10. The Application relies also, in support of its application for a lump sum order, on the affidavit of Ms Kristen Hibbard, sworn on 7 December 2018, as amplified by Ms Hibbard in the box today orally, in seeking a lump sum order for $27,837.50, for the costs of the default judgment application.

11. I have considered the evidence of Ms Hibbard, and I consider that the costs for the individual lawyers claimed for are reasonable on an hourly-rate basis for both the partner, Ms Hibbard as a senior associate and the law graduate.  Counsel’s fees also appear to me to be reasonable for the work described as having been done by them.  The work done in connection with the default judgment application appears also to me to be reasonable, both as to the scope and nature of the work done and the time taken to carry out the work, and the division of labour of that work between partner, senior associate and law graduate.

12. I have considered the affidavit evidence of Mr Rubock in opposing any such costs order.  I do not accept that Mr Rubock is some sort of innocent abroad in terms of legal proceedings.  He has been involved in legal proceedings in the recent past.  He clearly speaks English articulately, and the mere fact that he is in a reasonably far-out region of Australia does not, in terms of modern communications available to persons, militate against an order for costs against him.  Nothing that he has said, in my view, militates against an order being made against him.

13. The same applies to Ms Wilkins.  She is an English-speaking Australian.  She appears to be intelligent and articulate, and nothing that she has said in her affidavit or in her submissions, militates, in my view, against an order for costs being made against her.

14. Further, in the circumstances of this case, having regard to the fact that it has not, in any way, reasonably gone down the track of being put into a position for hearing, and the aggravation which the Applicant has been caused by the Respondents’ lack of attention and lack of responsiveness to the case, and the cumbersome and time-consuming and costly nature of the Applicant having to go to an assessment of costs leads me to consider that it is necessary and appropriate that I make a lump sum order for costs in the amount claimed, namely $27,837.50.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 February 2019