Dispute Resolution Associates Pty Ltd v Selth

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FEDERAL COURT OF AUSTRALIA

Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753

File number(s): NSD 1409 of 2018
Judge(s): COLLIER J
Date of judgment: 2 June 2020
Catchwords: PRACTICE AND PROCEDURE – standing to be substituted as first respondent in a representative capacity where representative of original first respondent deceased – whether proceedings commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) – where proceedings were commenced under r 9.23 of the Federal Court Rules 2011 (Cth) – inadequate evidence – failure to substantiate who should replace representative of first respondent
Legislation:

Federal Court of Australia Act 1976 (Cth) – ss 33C, 33D, 33E, 33J, 33X, 33Y

Federal Court Rules 2011 (Cth) – rr 9.11, 9.23, 9.32

Cases cited:

Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29

Cachia v Hanes (1994) 179 CLR 403

Edwards v Commonwealth Superannuation Corporation [2017] FCA 375

Selth v Australasian Barrister Chambers Pty Ltd (No 3) [2017] FCA 649

Dal Pont G E, Law of Associations (LexisNexis Butterworths, 2018)
Date of hearing: 29 May 2020
Registry: New South Wales
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 35
Counsel for the Second and Third Applicants: Mr D Minus appeared on behalf of the Second and Third Applicants
Counsel for the Respondents: Mr M O’Meara SC
Solicitor for the Respondents: Webb Henderson

ORDERS

NSD 1409 of 2018
BETWEEN:

DISPUTE RESOLUTION ASSOCIATES PTY LTD

Second Applicant

MEDIATION & ARBITRATION CENTRE PTY LTD ACN 608 133 768

Third Applicant
AND:

PHILIP SELTH IN A REPRESENTATIVE CAPACITY FOR THE MEMBERS OF THE AUSTRALIAN BAR ASSOCIATION

First Respondent

ABA AUSTRALIAN BAR ASSOCIATION LTD ACN 605 949 148

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

2 JUNE 2020

THE COURT ORDERS THAT:

1.The interlocutory application filed on 23 May 2020 be dismissed.

2.The parties bear their own costs of and incidental to the interlocutory application filed on 23 May 2020.

3.There be liberty to apply.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. The interlocutory application before me was filed by the respondents on 23 May 2020. It arises following the recent death of Mr Philip Selth OAM, who I understand was, at material times, the Chief Executive Officer of the Australian Bar Association (as an unincorporated association) and subsequently ABA Australian Bar Association Limited (ABA Ltd) (following its incorporation on 20 May 2015). Relevantly, for the purposes of this litigation, Mr Selth was the first respondent to these proceedings in a representative capacity for the members of the Australian Bar Association. Determination of this interlocutory application is attended by some urgency because it is opposed by the applicants, whose own application comes before me on Thursday, 4 June 2020.

  2. I note that Mr Minus was removed as an applicant to these proceedings by orders of the Court on 14 March 2019, however Mr Minus was…

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Details
Case
[2020] FCA 753
Decision Date

CaseChat Overview and Summary

In the case of Dispute Resolution Associates Pty Ltd v Selth, the applicants sought to have Mr Tolhurst substituted as the first respondent following the death of the original first respondent, Mr Selth. The Federal Circuit Court was required to determine the standing of Mr Tolhurst to replace Mr Selth and whether the proceedings were commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth). The applicants argued that the proceedings were initiated under Part IVA, thereby requiring the appointment of a new representative. The respondents, however, contended that the proceedings were commenced under rule 9.23 of the Federal Court Rules 2011 (Cth), and thus, no substitution was necessary.

The court found that it was common ground that Mr Tolhurst was not a member of the unincorporated association and therefore not a person with the "same interest in the proceeding" who could be a representative in the litigation for the purposes of rule 9.21. The court further noted that the respondents did not argue that Mr Tolhurst was a barrister or a member of the association, and they did not rely on rule 9.21 for the present proceedings. As such, there was no general principle supporting the appointment of Mr Tolhurst by reference to rule 9.21. The court also found that the respondents had not provided adequate evidence to substantiate that Mr Tolhurst should replace Mr Selth as the representative of the first respondent.

The court dismissed the respondents' interlocutory application and noted that the applicants' application was listed for hearing. The court found that all parties should bear their own costs of and incidental to the interlocutory application filed on 23 May 2020. The court also granted liberty to apply for substitution of a new representative for the first respondent. The interlocutory application filed on 23 May 2020 was dismissed, and the parties were ordered to bear their own costs of and incidental to the application. The court also noted that there would be liberty to apply for substitution of a new representative for the first respondent.

Orders

Orders of the court

1. The interlocutory application filed on 23 May 2020 be dismissed.

2. The parties bear their own costs of and incidental to the interlocutory application filed on 23 May 2020.

3. There be liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, however, I understand it to be common ground that Mr Tolhurst is not a barrister and accordingly not a member of the unincorporated association, such as to be a person with the “same interest in the proceeding” who could be a representative in this litigation for the purposes of r 9.21. If Mr Tolhurst were a person with the “same interest in the proceeding” because he is the Chief Executive of the unincorporated association “Australian Bar Association”, the respondents have not argued this. In any event, I note that the respondents do not rely on this rule for the purposes of the present proceedings. It follows that there is no general principle supporting the appointment of Mr Tolhurst by reference to r 9.21.CONCLUSION It is concerning that the position of the first respondent in the current proceedings is somewhat uncertain following the death of Mr Selth. The first respondent requires a representative; its cause of action continues. The responsibility lies, however, with the respondents to ensure that they present suitable material on the basis of which the Court can make appropriate orders to replace Mr Selth. It may be, as opined by Mr Tolhurst (as deposed by Mr Bridges) that Mr Tolhurst is the appropriate person to replace Mr Selth as the representative for the first respondent. The material provided by the respondents is, however, inadequate to substantiate this. I will grant liberty to apply, noting that the applicants’ application is listed for hearing by me later this week. In the circumstances the appropriate order is to dismiss the respondents’ interlocutory application. Mr Minus represented the second and third applicants as the person managing them, rather than in the capacity of a lawyer. Notwithstanding that they have successfully opposed the respondents’ interlocutory application, the applicants are not entitled to an award of costs: Cachia v Hanes (1994) 179 CLR 403, Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. Clearly, however, the respondents are not entitled to claim costs in respect of the present matter, nor do I consider it appropriate to reserve costs. The proper order is that all parties bear their own costs of and incidental to the respondents’ interlocutory application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.