Dain v Mark Group Australia Pty Ltd (No.4)

[2013] FCCA 1764

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAIN v MARK GROUP AUSTRALIA PTY LTD (No.4) [2013] FCCA 1764

Catchwords:
PRACTICE & PROCEDURE – Application to dismiss substantive action where applicant failed to comply with orders for payment of costs thrown away by earlier adjournments.

Dain v Mark Group Australia Proprietary Limited(No.3) [2013] FCCA 78

Applicant: MATT DAIN

Respondent: MARK GROUP AUSTRALIA PTY LTD

File Number: SYG 456 of 2012

Judgment of: Judge Raphael

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Sydney

Delivered on: 23 October 2013

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr D Mahendra

Solicitors for the Respondent: Mark Group Australia Pty Ltd

ORDERS

1. Substantive application dismissed.

2. Costs reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 456 of 2012

MATT DAIN

Applicant

And

MARK GROUP AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This matter has an unfortunate and lengthy history.  The originating application was filed on 1 March 2012 and was eventually set down for hearing on 8 and 9 April 2013 after a series of interlocutory steps.  One of those steps was to adjourn the original hearing date that had been set for 12 December 2012.  One of the grounds for that adjournment, as said in a judgment that I gave on 23 April 2013, was that Mr Dain, the applicant, had failed properly to subpoena certain witnesses who had then declined to attend.  I stated:

   “It was the generous grant of an adjournment, based upon the submissions that I heard that day from Mr Dain.” 

2. On 8 April I was faced with a further application for adjournment on the part of Mr Dain who was at that stage represented by Counsel.  That application for an adjournment was declined.  Mr Dain then appeared and made a further application concerning his former solicitor, a Mr Pope.  That application was the subject of a decision of mine, Dain v Mark Group Australia Proprietary Limited(No.3) [2013] FCCA 78 which concluded in the following way:

   “[26] In my view, if Mr Dain’s actions constituted an unreasonable act or omission which caused the respondent to incur those costs.  They are effectively costs thrown away as a result of the applicant making two unsuccessful and unmeritorious applications.  The fact that the applications were made at the late stage they were, the fact that the evidence to support them was inadequate and the fact that in regard to the second application where the indemnity costs have been ordered there really was no prospect of an adjournment at all assist me to come to that conclusion.

   [27]The orders I would propose to make are, therefore, that the second application made by Mr Dain be dismissed; that the applicant pay the respondent’s costs of the application made on 8 April 2013, such costs to be taxed, if not agreed, at 80% of the Federal Court rates and paid within 28 days of any adjourned hearing.  I will order that the second application made by Mr Dain and heard on the 8^th and 9^th of April be dismissed, and the costs of that application and the costs thrown away be paid by Mr Dain on an indemnity basis and that such costs be taxed, if not agreed, and paid within 28 days of any adjourned hearing.

   [28]I have not heard any application for costs on behalf of Mr Pope.  I think he has certainly been put to some expense.  The court has made no findings against him, merely expressed some concerns.  I think it would be fair that Mr Pope be reimbursed, at least in part, for what has occurred, and I propose to assess those costs and order that Mr Dain pay the costs of Mr Pope assessed in the sum of $2,500.00.”

3. The case was adjourned originally until 22 July at 10.15a.m. but the respondent’s costs had not been taxed by that time and so it would have been impossible for Mr Dain to pay the money within 28 days of a hearing.  There was another application and, by agreement, the matter was adjourned until today 23 October.  This would give time for the costs which had been assessed, but not taxed, to be taxed and paid.  It is, however, clear that Mr Dain was aware by July of this year of the general ballpark in which the amount of costs that he was going to be required to pay would fall. 

4. The costs were eventually taxed on 24 July so Mr Dain has had since that date to make arrangements for payment.  As at today’s date no payment has been received.  Today Mr Dain produced an affidavit, affirmed on 22 October, which essentially says that he thought he had made arrangements with his brother, who is a finance trader in the United States, to pay this account, but he has not done so.  Mr Dain does not appear to know why this has occurred.  He tells me that his mother assured him that his brother was going to make the payment but the fact is it has not been made.

5. The hearing date that was agreed for the case was 11 November. The purpose of making Mr Dain pay these costs in a reasonable period prior to the hearing was so that the respondents, who have already been put to very substantial expense, were not put to further expense in relation to a case that might not be heard. The court is sensible of the fact that it is not usually appropriate for an individual plaintiff to be asked to make a payment as security for costs but this is not such a payment. This is a payment in respect of costs that have already been incurred and awarded against him in a jurisdiction for which costs are not normally awarded because the respondents incurred considerable expense that was thrown away by Mr Dain’s inability to get his own witnesses to the court at the proper time. That, I believe, is an appropriate use of the relevant provision of the Fair Work Act which allows costs to be awarded.

6. After hearing Mr Dain, and Mr Mahendra on behalf of the respondent, I have come to the conclusion that I cannot permit this case to proceed and that I believe it should now be dismissed because of Mr Dain’s failure to comply with the court’s orders.  The case has gone on too long, the failures have been too great, and the prejudice to the respondent now far exceeds any benefit to the administration of justice that might be provided by giving Mr Dain yet one more chance.  I certainly do not believe that the case should be further adjourned and I think that it is unreasonable for the respondent to have to start preparing for a case without payment of its previously incurred costs  resulting from the actions of the applicant.

7. In all these circumstances, the substantive application must be dismissed. In regard to costs I accept Mr Mahendra’s submission that the proper order should be that costs be reserved with the proviso that the respondent must make an application for such costs within 14 days, together with an affidavit which describes the amount of those costs, and a submission which deals with the question of why the court should make an order for costs in the face of the provisions of the Fair Work Act. If such application is made Mr Dain will have 14 days in which to make submissions in response. If no such application is made then the normal situation will apply and there will be no order for costs on the substantive application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Raphael.

Associate: 

Date:  31 October  2013