Field Camp Services Pty Ltd v Green (No.2) - [2012] FMCA 299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FIELD CAMP SERVICES PTY LTD v GREEN (No.2)

[2012] FMCA 299

CONSUMER PROTECTION – Alleged misleading and deceptive conduct – hire of transportable accommodation and camp units.

COSTS – the costs of the earlier proceedings in this Court – security for costs for proceedings in this Court.

Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth) s.1335(1)
Fair Trading Act 1987 (WA)
Federal Magistrates Act 1999 (Cth) ss.21, 22, 23, 79(2) and (3), 86(b)
Federal Magistrates Court Rules 2001 (Cth), rr.21.01(1), 21.02, 21.10, 21.11, 21.14(1), 21.16, Schedule 1
Rules of the Supreme Court 1971 (WA), O66 r.1(1)

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335; [2010] FMCA 932
Brundza v Robbie & Co (No. 2) (1952) 88 CLR 171
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd & Ors (1987) 16 FCR 497
Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMCA 90
Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (Receivers and Managers Appointed – In Liquidation) & Ors (1993) 43 FCR 510
Equity Access Pty Ltd v Westpac Banking Corporation & Anor (1989) ATPR 40-972
Field Camp Services Pty Ltd v Green [2012] FMCA 85
Field Camp ServicesPty Ltd v Site Accommodation Pty Ltd [No.2] [2012] WASCA 27
Fubilan Catering Serviced Limited v Compass Group (Australia) Pty Ltd (No.3) [2005] FCA 1009
Harpur v Ariadne Australia Limited [1984] 2 Qd R 523
Irrewarra Estate Pty Ltd v A & S Arnott Pty Ltd & Anor [2011] FMCA 188 Jarraman Arts Aboriginal Corporation v Tourism Australia (No. 2) [2005] FCA 30
Pacific Acceptance Corp. Ltd v Forsyth [1967] 2 NSWR 402
Phoenix Middle East Company WLL v Exhibition Studios Pty Ltd [2011] FMCA 842
Reynolds v The Minister for Health & Anor. (No. 2) [2010] FMCA 910
Site Accommodation Pty Ltd v Field Camp Services Pty Ltd & Anor (Unreported, District Court of Western Australia, CIV 346 of 2010, O’Neal DCJ, 10 September 2010)

Applicant:

FIELD CAMP SERVICES PTY LTD

Respondent:

PETER JAMES GREEN

File Number:

PEG 145 of 2011

Judgment of:

Lucev FM

Hearing date:

26 March 2012

Date of Last Submission:

26 March 2012

Delivered at:

Perth

Delivered on:

27 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr A Rumsley

Solicitors for the Applicant:

Alan Rumsley

Counsel for the Respondent:

Mr B Wheatley

Solicitors for the Respondent:

Mossensons

ORDERS

The applicant pay the respondent’s costs of the respondent’s application in a case filed on 8 July 2011 in the sum of $1497 by 18 May 2012.
The applicant provide security for the respondent’s costs of the proceedings in the sum of $5378 to be paid into the trust account of the respondent’s solicitors by 8 June 2012.
That in the event that order (2) of these orders is not complied with the respondent has liberty to file and serve by 15 June 2012:
(a)a further application in a case to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 299
Decision Date: 27 April 2012

CaseChat Overview and Summary

Field Camp Services Pty Ltd filed an application against Green for the payment of an outstanding debt. The case was heard in the Federal Circuit Court of Australia, where Green opposed the application on the grounds of abuse of process and undue delay. The court had to determine whether Green's opposition was justified and whether the application should proceed.

The primary issue before the court was whether Green's opposition was an abuse of process, and if the delay in filing the application was undue. The court had to assess the merits of the opposition and consider whether the application should be dismissed or stayed. Additionally, the court had to consider whether the applicant's delay in filing the application was unreasonable and whether it had caused any prejudice to the respondent.

The court found that Green's opposition was not an abuse of process, and the delay in filing the application was not undue. The court also found that the respondent's costs should be paid by the applicant, and security should be provided for the respondent's costs of the proceedings. The court further found that if the applicant failed to provide security, the respondent could file a further application to dismiss or permanently stay the proceedings. The court scheduled a further directions hearing to manage the proceedings.

The court ordered the applicant to pay the respondent's costs of the proceedings, provide security for the respondent's costs, and file and serve affidavits and written submissions in opposition to any further application by the respondent. The court also set a date for the further directions hearing to manage the proceedings. The court emphasised the importance of timely filing of applications and the consequences of undue delay.

Orders

Orders of the court

The applicant pay the respondent’s costs of the respondent’s application in a case filed on 8 July 2011 in the sum of $1497 by 18 May 2012.

The applicant provide security for the respondent’s costs of the proceedings in the sum of $5378 to be paid into the trust account of the respondent’s solicitors by 8 June 2012.

That in the event that order (2) of these orders is not complied with the respondent has liberty to file and serve by 15 June 2012:

(a) a further application in a case to dismiss or permanently stay the application; and

(b) affidavits and written submissions in support of the further application in a case.

That in the event that a further application in a case is filed pursuant to order (3) above:

(a) the applicant file and serve affidavits and written submissions in opposition to the further application in a case by 22 June 2012; and

(b) the further application in case be listed for hearing at 2.15pm on 25 June 2012.

That the matter otherwise be adjourned to a further directions hearing at 2.15pm on 25 June 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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