Dain v Mark Group Australia Pty Ltd (No.3)

In the Federal Circuit Court of Australia, Judge Raphael considered an application by the applicant, Matt Dain, against the respondent, Mark Group Australia Pty Ltd. The dispute concerned an adjourned hearing originally set for 8 and 9 April 2013, following a previous adjournment on 12 December 2012, which was granted because the self-represented applicant had failed to properly subpoena witnesses. The applicant's amended statement of claim had also removed a claim for breach of contract within the court's accrued jurisdiction.

The court was required to determine two primary legal issues. Firstly, whether to grant a further adjournment sought by the applicant on 8 April 2013, based on the applicant's assertion that documentation provided by the respondent did not accurately reflect sales or appointments, which would have entitled him to additional payments. Secondly, the court had to consider the appropriate costs orders, particularly in relation to unsuccessful and late applications, and whether the applicant's conduct constituted an unreasonable act or omission that caused the respondent to incur costs.

Judge Raphael declined the initial application for an adjournment on 8 April 2013. The reasoning was that the applicant had not previously requested the specific documents now in question, and the grounds for the adjournment related to the applicant's abandoned accrued jurisdiction claim. The judge noted that the applicant had been aware of potential inaccuracies in documentation much earlier, having spoken with customers. Following this decision, the applicant's counsel withdrew, leaving the applicant self-represented. The court then dismissed a second application for an adjournment made on 8 and 9 April 2013.

The court ordered that the applicant pay the respondent's costs of the first adjournment application on 8 April 2013, taxed at 80% of the Federal Court scale. The second adjournment application was dismissed, with the applicant ordered to pay the costs of that application and the costs thrown away on an indemnity basis. Additionally, the applicant was ordered to pay the costs of Mr Pope, assessed at $2,500.00.