Field Camp Services Pty Ltd v Green (No.3)
[2012] FMCA 577
•6 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIELD CAMP SERVICES PTY LTD v GREEN (No.3) | [2012] FMCA 577 |
| CONSUMER PROTECTION – Alleged misleading and deceptive conduct – hire of transportable accommodation and camp units. PRACTICE AND PROCEDURE – Failure to pay costs of earlier proceedings in other courts – statutory demand made – whether application to be dismissed or permanently stayed. COSTS – Failure to pay costs of earlier proceedings in this court and State courts – statutory demand made – whether application to be dismissed or permanently stayed. |
| Competition and Consumer Act 2010 (Cth), ss.82, 87 Corporations Act 2001 (Cth), s.471B Fair Trading Act 1987 (WA), ss.77, 79 Federal Magistrates Act 1999 (Cth), s.15 Trade Practices Act 1974 (Cth) |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Farmitalia Carlo Erba Srl v Delta West Pty Ltd (1994) 28 IPR 336 |
| Applicant: | FIELD CAMP SERVICES PTY LTD |
| Respondent: | PETER JAMES GREEN |
| File Number: | PEG 145 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 2 July 2012 |
| Date of Last Submission: | 2 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 6 July 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
That the respondent’s application in a case filed 15 June 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 145 of 2011
| FIELD CAMP SERVICES PTY LTD |
Applicant
And
| PETER JAMES GREEN |
Respondent
REASONS FOR JUDGMENT
Application in a case – orders sought
Pursuant to order (3) of the Court’s orders of 27 April 2012 the respondent, Mr Green, has filed an application in a case, seeking the following orders:
1.The Applicant’s application be dismissed or permanently stayed for failure to comply with paragraphs 1 and 2 of the Order made by Federal Magistrate Lucev on 27 April 2012 herein.
2.Alternatively to 1 above, the Applicant’s application be stayed pending compliance with paragraphs 1 and 2 of the Order made by Federal Magistrate Lucev on 27 April 2012 herein and the payment of outstanding costs by the Applicant in District Court action 346 of 2010 and Supreme Court appeal CACV 105 of 2010.
3.The Applicant pay the costs of the application in a case to be fixed.
At the hearing of the application in a case on 2 July 2012 a stay was also sought on the basis that a creditors statutory demand, dated 20 June 2012,[1] had not yet been complied with by the applicant, Field Camp Services Pty Ltd.[2]
[1] “Statutory Demand”.
[2] “Field Camp Services”.
Substantive application
The substantive application by Field Camp Services originally sought:
a)damages under ss.82 and 87 of the Competition and Consumer Act 2010 (Cth)[3] for alleged misleading or deceptive conduct;
b)further, and in the alternative, damages under ss.77 and 79 of the Fair Trading Act 1987 (WA)[4] in respect of the same alleged conduct; and
c)further, and in the alternative, damages for conduct which is alleged to have constituted an intentional interference with contractual relations between Field Camp Services and Cameco Australia Pty Ltd,[5] in relation to the sub-hire by Field Camp Services to Cameco of transportable accommodation and camp units[6] at a site at the remote Rudall River in the East Pilbara region of Western Australia.[7]
The latter claim was struck out by order of the Court on 26 March 2012.[8]
[3] “CC Act”. As to whether this claim ought to be brought under the Trade Practices Act 1974 (Cth), see fn.4 in Field Camp Services v Green [2012] FMCA 85 (“Field Camp Services (No. 1)”).
[4] “FT Act”.
[5] “Cameco”.
[6] “Units”.
[7] “Cameco Contract”.
[8] See para.14 below.
Litigation history in other courts
On 8 February 2010 Site Accommodation Pty Ltd,[9] of which Mr Green is a director, filed a writ in the District Court of Western Australia[10] against Field Camp Services and Remote Camps Australia Pty Ltd[11] claiming for amounts due for the hire of the Units. A statement of claim[12] was filed on 25 March 2010.[13]
[9] “Site Accommodation”.
[10] “District Court”.
[11] “Remote Camps”.
[12] “Statement of Claim”.
[13] “District Court Action”.
On 5 July 2010 a Deputy Registrar of the District Court dismissed Site Accommodation’s application for summary judgment,[14] and granted Field Camp Services leave to defend Site Accommodation’s claim.
[14] “Deputy Registrar’s Decision”.
On 10 September 2010 the District Court, on appeal from the Deputy Registrar’s Decision, allowed Site Accommodation’s claim against Field Camp Services in the sum of $90,354.61.[15] On 22 September 2010, the District Court ordered that there be summary judgment against Field Camp Services for $90,354.61, plus interest of $3,460.05, plus costs.[16] The District Court was not, however, satisfied that Field Camp Services had a counterclaim against Site Accommodation for an alleged intentional interference with contractual relations in relation to the Cameco Contract.[17]
[15] 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) (“Site Accommodation”) at page 13 per O’Neal DCJ. The judgment in Site Accommodation does not bear a media neutral citation and does not have numbered paragraphs. Therefore, references to Site Accommodation in this judgment are to the page numbers of the judgment.
[16] Affidavit of Peter James Green, sworn 8 July 2011, Annexure C (“Mr Green’s Affidavit”).
[17] Site Accommodation at pages 9-12 per O’Neal DCJ.
On 30 September 2010 Field Camp Services appealed Site Accommodation.[18] Site Accommodation applied for security for costs in respect of the Appeal, and Field Camp Services countered with an application for a suspension order.[19]
[18] Mr Green’s Affidavit, para.16 (“Appeal”).
[19] Mr Green’s Affidavit, para.17.
On 21 December 2010 Site Accommodation’s costs of the District Court Action against Field Camp Services were taxed and allowed at $10,169.22.[20]
[20] Mr Green’s Affidavit, para.12.
On 25 May 2011 the Supreme Court of Western Australia, Court of Appeal[21] delivered judgment in relation to the applications for security
for costs and for a suspension order.[22]
[21] “Court of Appeal”.
[22] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 (“Field Camp Services – Appeal (No. 1)”).
On 10 June 2011 the Court of Appeal ordered Field Camp Services to provide security for costs of the Appeal in the sum of $12,000, and that subject to Field Camp Services paying $100,523.83, being the total of the judgment debt exclusive of interest, the orders made in the District Court Action be suspended.[23] On 3 February 2012 the Appeal was dismissed by the Court of Appeal.[24]
Litigation history - previous judgment and orders of this Court
[23] Mr Green’s Affidavit, para.21 and Annexure E.
[24] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd[No. 2] [2012] WASCA 27 (“Field Camp Services – Appeal (No. 2)”).
Previous judgment – factual matrix
In Field Camp Services (No. 1) the Court made the following observations”
59. A comparison of the judgment in Site Accommodation setting out the outcomes of the District Court Action, with the FMC Statement of Claim shows that:
a) the parties are different, with Mr Green, rather than Site Accommodation, being respondent to these proceedings, but on the facts:
i) the same corporate entities, namely, Field Camp Services, Site Accommodation and Cameco are involved;
ii) the same people (in particular, Mr Green, Mr Browne and the office administrator of Cameco) are involved; and
iii) although Site Accommodation is not a party to these proceedings, it is the conduct of Mr Green, as director of Site Accommodation, which is directly in issue, and this is an issue which was already considered in the District Court Action;
b) the Cameco Contract, and in particular the circumstances in which it came to be allegedly breached by Cameco, and whether that was as a consequence of intentional interference by Site Accommodation, was:
i) put in issue in the District Court by Field Camp Services; and
ii) the subject of express findings by the District Court in Site Accommodation,
and the potential counterclaim in the District Court Action appears to be identical in fact and law to the claim for intentional interference with contractual relations in the FMC Statement of Claim, save that in these proceedings, it is Mr Green and not Site Accommodation being sued;
c) the CC Act and FT Act claims rely upon the same conduct, and in part, that conduct is conduct which was in issue in the District Court Action, but Field Camp Services now asserts (in paragraphs 11.3 and 11.4 of the FMC Statement of Claim) that a representation was made that the purpose of Mr Browne providing Cameco’s contact details to Mr Green, and of Mr Green contacting Cameco, was to confirm that Cameco would pay the monies Cameco owed to Field Camp Services, and not, as Field Camp Services allege transpired, for Mr Green to persuade Cameco to enter into a contract with Site Accommodation in relation to the ongoing hire of the Units; and
d) the relief sought, namely the loss said to have been suffered by Field Camp Services for the period 20 January 2010 to 15 May 2010 is, save for one day, the same loss as was alleged in the potential counterclaim in the District Court Action, albeit that in the District Court Action it was quantified in the sum of $197,340, but is not quantified in these proceedings.
60. In relation to factual matters, there is a very substantial overlap between the facts which were in issue in the District Court Action, and those pleaded in the FMC Statement of Claim. There are, however, also differences. Specifically, additional facts are alleged in the FMC Statement of Claim to found the representation said to give rise to the misleading and deceptive conduct for the purposes of the CC Act and FT Act claims. With Mr Green being the subject of the allegations made by Field Camp Services in the FMC Statement of Claim, the parties are also different in the FMC Statement of Claim. The cause of action is also different, at least in part, with the FMC Statement of Claim alleging misleading and deceptive conduct under the CC Act and FT Act, as well as alleging intentional interference with contractual relations by Mr Green in relation to the Cameco Contract, whereas the District Court Action was an action in debt, with a potential counterclaim, by Field Camp Services for intentional interference with contractual relations by Site Accommodation in the Cameco Contract. The additional facts alleged, when taken together with the difference in the parties and the causes of action, are sufficient for the Court to find that the facts are not the same, in the District Court Action and in these proceedings.[25]
[25] Field Camp Services (No.1) at paras.59-60 per Lucev FM.
The Court went on to find that:
96. The basis for the CC Act and FT Act claims, namely the alleged representation, can form no part of the cause of action for debt, or the potential counterclaim for intentional interference with contractual relations, in the District Court Action, and were not in issue in those proceedings. Furthermore, there is nothing in the judgment in Site Accommodation relating to the action in debt or the potential counterclaim for intentional interference with contractual relations which, directly or by derivation, affects the legal rights said to arise from the representations alleged under the CC Act or FT Act claims. Neither of the causes of action in issue in the District Court Action had, as a necessary ingredient, reliance upon the alleged misrepresentation, as a consequence of which it is alleged Field Camp Services acted, or refrained from acting, and which resulted in the damage claimed. There is, therefore, no real possibility of conflicting judgments if the CC Act and FT Act claims are ultimately allowed to proceed in this Court, assuming, for present purposes, that those claims are not to be brought, in the future, against either Site Accommodation or Mr Green in the District Court Action, if the Appeal were successful, by way of amendment of the pleadings, and joinder of an additional party, namely, Mr Green. The ability to seek to make such amendment is, of course, dependent upon the outcome of the Appeal.
97. As ought to be evident from the preceding remarks, the Court has not lost sight of the fact that the CC Act and FT Act claims are within the jurisdiction of the District Court, and might have been brought, and might still be brought, forward as claims in the District Court Action. And, whilst there is no explanation as to why that part of the 18 January 2010 telephone conversation relating to the alleged making of the alleged representations was not a matter raised in the District Court Action by Field Camp Services, as it might have been, it is not difficult to conceive of circumstances where such a matter might be raised, for the first time, by Field Camp Services with its lawyers following the handing down of the judgment in Site Accommodation.
98. Regard must also be had for the nature of the litigation which led to the judgment in Site Accommodation. Field Camp Services was first given leave to defend by reason of the Deputy Registrar’s Decision. Then, on appeal, summary judgment was awarded against Field Camp Services in Site Accommodation. It would appear that, at no stage, has Field Camp Services been able to turn its mind, in a formal way, to consideration of a proper defence, including counterclaims and cross-claims, in the course of the District Court Action. It appears evident that, for whatever reason, the representations which are now alleged, were not brought forward, for example, in Mr Browne’s Affidavit, during the course of the District Court Action. Had Mr Browne’s Affidavit set out the alleged representations, and had no counterclaim or cross-claim then been made, the Anshun estoppel claim made by Mr Green would have been much stronger.
99. These are all matters of degree, but the Court is of the view that what is now alleged by way of additional facts, as to the alleged representations, is sufficiently different, and substantial, to warrant the conclusion that it is not unreasonable for Field Camp Services to bring separate proceedings in this Court in relation to the CC Act and FT Act claims, and that those claims ought not to be stayed on the basis of Anshun estoppel.[26]
[26] Field Camp Services (No.1) at paras.96-99 per Lucev FM (footnotes omitted).
In relation to the abuse of process claim the Court found that:
106. As with Anshun estoppel, it is necessary to consider the alleged counterclaim for intentional interference with contractual relations raised in the District Court Action separately from the CC Act and FT Act claims made under the FMC Statement of Claim. It is convenient to deal with the intentional interference with contractual relations claim first.
107. The intentional interference with contractual relations case pleaded in the FMC Statement of Claim is no different to that determined in the judgment in Site Accommodation. The issue was an important one in the District Court Action because it was a potential counterclaim by Field Camp Services, and the opportunity was taken to raise the issue and to have it determined, albeit on a summary judgment application. Although the issues cannot be said to have been fully litigated in the sense of a full hearing with evidence called and cross-examined on, it makes little difference because the issue was determined adversely to Field Camp Services primarily on its own evidence, and the factual allegations in the FMC Statement of Claim are, in relevant respects, the same as those considered in Site Accommodation. Even if the issue has to be reconsidered by the District Court as a consequence of the ultimate outcome of the Appeal, it would still be an issue which is squarely before the District Court for determination. Comity demands that this Court respect the current determination of the District Court in Site Accommodation on this issue, especially where the factual matrix is, relevantly, the same. And, even if the matter had to be reconsidered by the District Court as a result of the ultimate outcome of the Appeal the additional cost and expense of running the same case in this Court, when the issue has been raised only latterly in this Court, and the possibility, theoretical at least, of different judgment outcomes, dictate that the intentional interference with contractual relations claim be stayed in this Court. If the Appeal is dismissed that ends the matter, for it has already been determined by the District Court.
108. Subject to the outcome of the Appeal, it is a case which has already been disposed of and ought not be litigated anew in this Court. In any event, considerations of duplication and expense dictate that the matter ought remain in the District Court to be litigated, rather than be litigated in this Court and the District Court concurrently. A litigant ought not be vexed by having to defend precisely the same case in two courts at the same time.
109. With respect to the intentional interference with contractual relations claim, the fact that Mr Green is the respondent in the proceedings in this Court does not effect the Court’s view that that claim ought to be stayed. This is because all the relevant conduct by Mr Green was conduct in his capacity as a director of Site Accommodation, and ultimately the facts, and the relevant outcomes, remain the same.
110. The intentional interference with contractual relations issue ought therefore be stayed in this Court.
111. In relation to the CC Act and FT Act claims, there are no issues of comity as those claims have not been agitated before the District Court. Nor, for reasons set out above with respect to the Anshun estoppel issue, is it reasonable for Field Camp Services to have those issues stayed on the basis that they ought to have been litigated before the District Court, at least by way of their being adverted to as potential counterclaims or cross-claims in Mr Browne’s Affidavit in the District Court Action. There are no findings of the District Court in relation to the separate, and central elements, of the CC Act and FT Act claims, namely reliance on the representations allegedly made in the 18 January 2010 telephone conversation, because those representations were not then in issue. Further, those issues appear to be quite limited in compass, and capable of being dealt with expeditiously and discretely from the issues raised in the District Court Action. Furthermore, it would appear that on the basis of the factual allegations in the FMC Statement of Claim, that there will be fresh evidence, which has not been tested in any court, put forward in support of the CC Act and FT Act claims.
112. …
113. …
114. …
115. The Court does not agree that allowing the CC Act and FT Act claims to proceed in this Court will render the orders made in both the District Court and the Court of Appeal useless. Those orders, independently of this action, continue to have force and effect in their terms. As indicated above, the CC Act and FT Act claims are independent causes of action, based on different, and as yet untried, factual and legal elements, and the mere existence of the orders in the District Court and Court of Appeal, ought not preclude an otherwise arguable claim being pursued in this Court.
116. The Court has therefore determined that proceedings in this Court ought to be stayed. Subject to the ultimate outcome of the Appeal, and any further steps in the District Court Action, reconsideration of the stay, in whole or in part, may be warranted at some future stage.[27]
[27] Field Camp Services (No.1) at paras.106-116 per Lucev FM (footnotes omitted).
Following brief argument at a directions hearing on 26 March 2012 the Court ordered that paragraphs 24 and 25 of the statement of claim be struck out. Those paragraphs related to Field Camp Services’ claim with respect to the tort of intentional interference with contractual relations. In Field Camp Services (No.1) this Court found that that was a claim which had already been disposed of in the District Court Action and ought not be litigated anew in this Court, subject to the outcome of the Appeal.[28] The Appeal was dismissed, and the District Court judgment in Site Accommodation stood.[29]
[28] Field Camp Services (No.1) at paras.106-110 per Lucev FM.
[29] Field Camp Services – Appeal (No. 2).
Previous orders – costs and security for costs
This Court delivered judgment in Field Camp Services Pty Ltd v Green(No.2)[30] on 27 April 2012, and made orders, including the following orders:
(1) 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.
(2)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.
(3)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.[31]
[30] [2012] FMCA 299 (“Field Camp Services (No.2)”).
[31] “27 April 2012 Orders”.
Previous judgment – applicant’s financial position
In Field Camp Services (No.2) the Court considered the position with respect to awarding security for costs and observed as follows:
30. There is no direct evidence in these proceedings of the financial standing of Field Camp Services, or of any person standing behind them. From the failure to pay the judgment debt and costs referred to above, and with the addition of a further, albeit small, costs order in these proceedings, and the likelihood of a further costs order arising in relation to the proceedings in Field Camp Services Appeal, the Court is prepared to infer that there might be some frailty in Field Camp Services’ financial position. However, having regard to the overall lack of evidence, but also to Field Camp Services capacity to raise a moderate sum of $12,000 for security for costs in relation to the proceedings in Field Camp Services Appeal, the Court cannot infer that Field Camp Services is impecunious, but rather that it may have the capacity to raise a further moderate sum as security for costs in relation to its genuine, and probably arguable, claims in these proceedings.[32]
[32] Field Camp Services (No.2) at para.30 per Lucev FM.
As indicated in the above quoted orders the Court went on to make provision for what was to occur if the amount of the security for costs was not paid as ordered.[33]
[33] Field Camp Services (No.2) at paras.33 and 34(b)-(d) per Lucev FM.
Evidence in the application in a case
The application in a case is supported by two affidavits made by
Mr Green’s solicitor, Brian Philip Wheatley, one sworn on 15 June 2012, [34] the other sworn 2 July 2012. [35]
[34] “Mr Wheatley’s June 2012 Affidavit”. Mr Wheatley’s June 2012 Affidavit was sworn and filed on 15 June 2012 not 14 June 2012 as indicated in the application in a case.
[35] “Mr Wheatley’s July 2012 Affidavit”.
Mr Wheatley’s June 2012 Affidavit relevantly provided as follows:
2.I refer to the affidavit of the Respondent, Peter James Green, sworn 8 July 2011, filed herein, which refers to District Court action 346 of 2010 by Site Accommodation Pty Ltd (“Site Accommodation”), of which the Respondent is a director, against the Applicant and a related company (“the District Court action”).
3.On 30 January 2012, a Taxing Officer of the District Court taxed and allowed costs of $12,205.41 to Site Accommodation against the Applicant in the District Court action.
4.By email dated 31 January 2012, Mossensons, the solicitors for Site Accommodation and the Respondent, wrote to the solicitors for the Applicant requesting payment of the taxed costs of $12,205.41 in the District Court action. Annexed and marked “A” is a copy of that email and taxed Bill of Costs.
5.The Applicant has not responded to that email or paid the taxed costs referred to above.
6.The affidavit of the Respondent referred to in paragraph 2 above also refers to the Applicant’s Supreme Court Appeal CACV 105 of 2010 (“the Supreme Court Appeal”).
7.On 3 February 2012, the Supreme Court Appeal was dismissed by the Court of Appeal (Martin CJ, Newnes JA, Murphy JA) and the Applicant was ordered to pay Site Accommodation’s costs of the appeal to be taxed, if not agreed.
8.…
9.…
10.On 14 June 2012, a Taxing Officer of the Supreme Court taxed and allowed costs of $20,102.05 in the Supreme Court Appeal, leaving an amount of $8,102.05 owing by the Applicant after deducting an amount of $12,000.00 paid as security for costs of the Supreme Court Appeal. Annexed and marked “B” is a copy of the taxed bill of costs and Certificate of Taxation signed by the Taxing Officer.
11.On 27 April 2012, Federal Magistrate Lucev made orders that the Applicant pay $1,497.00 by 18 May 2012 (paragraph 1 of the Orders), provide security for costs of $5,378.00 by 8 June 2012 (paragraph 2 of the Order) and that in default of Order (2) the Respondent have liberty to make a further application herein.
12.The Applicant has not complied with paragraphs 1 and 2 of the Order made by Federal Magistrate Lucev on 27 April 2012.
Mr Wheatley’s July 2012 Affidavit provides as follows:
a)the Statutory Demand was made by Site Accommodation and served on Field Camp Services by post to Field Camp Services’ registered office, and also to its solicitor on 20 June 2012;
b)on 29 June 2012 Mr Wheatley had a discussion with Mr Rumsley, who is acting for Field Camp Services, and Mr Rumsley advised that he had no instructions in relation to, and indeed had not received, the Statutory Demand at that time; and
c)in the event that Field Camp Services does not comply with the Statutory Demand Mr Wheatley’s instructions are to issue an application to wind-up Field Camp Services.
The Statutory Demand is for the sum of $20,597.44, being the taxed amount of costs, plus interest, less security for costs provided, in the District Court Action and the Appeal.
No evidence was filed on behalf of Field Camp Services but certain facts are set out in Field Camp Services’ submissions which are not in dispute.[36]
Submissions
[36] As to which see paras.27-28 below.
Mr Green’s submissions
Mr Green refers to the 27 April 2012 Orders of the Court and observes that Field Camp Services has failed to comply with those orders. Additionally, Mr Green says that Field Camp Services has failed to pay Site Accommodation, of which Mr Green is a director, costs of $20,307.46 for the District Court Action and the Appeal.
Mr Green submits that Field Camp Services’ application in this Court arises out of the same facts, or substantially similar facts, as those alleged in the District Court Action and the Appeal.
Mr Green refers to Sarina v Nicols,[37] a judgment of this Court, and to a passage in which the Court observed as follows:
34. In Bowen v Hickey the plaintiff was non-suited in a negligence action brought against the Tattersalls Club and the trainer of a horse that had kicked him. The plaintiff subsequently commenced fresh proceedings against the same parties, not having paid the costs that he had been ordered to pay in respect of the first action. The second proceedings were framed in contract. The New South Wales Court of Appeal observed that the second action was based upon the same matter as the first, the incident complained of was the same and the damage alleged was identical. Notwithstanding the difference in the pleadings, the court was of the view that the second proceedings should be stayed pending payment of the costs or, in that case, until security had been given. (Also see Beazley JA in Idoport v National Australia Bank Limited & Anor [2006] NSWCA 202 and CGU Insurance Ltd v Watson (as trustee of the deed of arrangement in respect of Greaves) [2007] NSWCA 301 per Giles JA at [40]).[38]
[37] [2009] FMCA 977 (“Sarina”).
[38] Sarina at para.34 per Barnes FM.
Mr Green therefore seeks orders for dismissal or a permanent stay of these proceedings.
Field Camp Services’ submissions
Field Camp Services submits as follows:
a)on 27 April 2012, the Court ordered Field Camp Services to pay security for costs of $5,378.[39] The Court made the order on the basis that Field Camp Services “may have the capacity to raise a further moderate sum as security for costs in relation to its genuine, and probably arguable, claims in these proceedings”;[40]
b)upon receipt of funds, Field Camp Services paid $5,378 into the trust account of Mr Green’s solicitor, by way of security for costs, on 14 June 2012;
c)after receipt of the funds for security for costs, Mr Green brought an application in a case seeking the proceedings be dismissed or permanently stayed for non-payment, or alternatively stayed pending payment;
d)on 19 June 2012, Field Camp Services paid the amount of $1,497 costs ordered to be paid under the 27 April 2012 Orders into the trust account of Mr Green’s solicitors;
e)on 29 June 2012, Mr Green’s solicitors confirmed receipt of the payments into their trust account and that Mr Green would seek orders in terms of the application in a case;
f)the Court has recognised the need to “consider whether an order for security for costs might be oppressive, in the sense that it precludes Field Camp Services from continuing with the proceedings and stifles a genuine claim;[41]
g)an order for security should not be the means of effectively denying Field Camp Services the right to pursue the claim;[42]
h)the application for a stay seeks to preclude Field Camp Services from continuing with the proceedings, in circumstances where, the security for costs has been paid and was received into the trust account of Mr Green’s solicitors before the application was filed; and
i)notwithstanding the importance of case management principles[43] and of complying with timelines,[44] the question remains whether, ultimately, it is in the interests of justice that parties with an arguable case be shut out from arguing that case, after the security has been paid.
[39] Field Camp Services (No.2) at para.31 per Lucev FM.
[40] Field Camp Services (No.2) at para.30 per Lucev FM.
[41] Field Camp Services (No.2) at para.27(a) per Lucev FM.
[42] Farmitalia Carlo Erba Srl v Delta West Pty Ltd (1994) 28 IPR 336 at 345 per Heerey J.
[43] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
[44] Willis v Western Australia (No. 2) [2009] WASCA 205.
Insofar as the above submissions contain factual material there is no dispute between Mr Green and Field Camp Services as to those facts.
Consideration
The Court has power under s.15 of the Federal Magistrates Act 1999 (Cth) to stay proceedings.[45] The power is discretionary, to be exercised on the basis that it would be unjust, oppressive, vexatious, malicious or frivolous to permit a second action to continue.[46]
[45] Sarina at para.16 per Barnes FM.
[46] Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 448 per Isaacs J (“Hutchinson”); Sarina at para.36 per Barnes FM (where only unjust or oppressive are referred to).
The general principle is that where an applicant has failed in an action, and seeks to bring a second action on the same, or substantially the same, facts, a court will stay the proceedings until the costs of the first action are paid.[47]
[47] Hutchinson at 448 per Isaacs J; Sarina at para.33 per Barnes FM
Factors to be considered in the exercise of the discretion include:
a)the merits of the case; and
b)the likelihood of the party concerned having to pay additional costs if the second action proceeds.[48]
[48] Hutchinson at 449-450 per Isaacs J.
In this Court orders for a stay have been made where:
a)the Court was not in a position to assess the merits of the second action;[49] and
b)the merits of the first action were said not to be for this Court to decide, and where no assessment seemed to be made of the merits of the second action in this Court.[50]
[49] Sarina at para.33 per Barnes FM.
[50] Rana v Fsaser Hotel Pty Ltd T/A Hyatt Regency Hotel [2007] FMCA 403 at para.8 per Cameron FM (“Fsaser Hotel”).
A stay may be ordered where the costs have been awarded, but not yet taxed,[51] or where the costs order has been suspended pending a review by a professional review body.[52]
[51] Fsaser Hotel at paras.3 and 9 per Cameron FM.
[52] Sarina at para.33 per Barnes FM.
The Court gave extensive consideration in Field Camp Services (No.1) to the basis on which these proceedings might be stayed. Ultimately, the effect of Field Camp Services (No.1) was that these proceedings were stayed pending the determination of the Appeal, which was dismissed, and no more.[53]
[53] See para.10 above, and Field Camp Services (No.1) at paras.111 and 115 per Lucev FM..
As was made clear in Field Camp Services (No.1) whilst the background factual matrix is broadly the same as in the District Court Action and the Appeal, these proceedings are based on different, and as yet untried, factual and legal claims to those in the District Court Action and the Appeal, and also involve different parties, namely Mr Green and not Site Accommodation.[54]
[54] See generally the passages from Field Camp Services (No. 1) set out at paras.11-13 above.
Field Camp Services has now paid the costs of earlier proceedings in this matter, and provided security for costs for future proceedings, and, albeit it was late in doing so, it paid the security for costs before this application in a case was filed. Mr Green now argues that:
a)the non-payment of the costs in the District Court Action and Appeal; and
b)by the making of a Statutory Demand under the Corporations Act 2001 (Cth)[55] against Field Camp Services, not by Mr Green, but by Site Accommodation the defendants in the District Court Action and the Appeal, ought to result in these proceedings being dismissed or permanently stayed.
[55] “Corporations Act”.
In this case, as the Court has already observed the remaining claims under the CC Act and the FT Act stand on a different and untried factual and legal basis to the District Court Action and the Appeal. Although some of the surrounding facts might be common, the facts which must be proven to establish the statutory claims under the CC Act and the FT Act are matters which have never been tested in any court. And, as the Court observed in Field Camp Services (No.1), the orders of the District Court and Court of Appeal “ought not preclude an otherwise arguable claim being pursued in this Court.”[56]
[56] Field Camp Services (No.1) at para.115 per Lucev FM.
In this matter, the Court must also take account of the fact that the existing costs orders of this Court have been met by Field Camp Services, and security for future costs has been provided. Thus, the costs risk to Mr Green in relation to these proceedings is minimal.
In the exercise of its discretion the Court must, and has, had regard to:
a)the District Court Action and the Appeal, and the outstanding costs orders in those matters;
b)the judgment of this Court in Field Camp Services (No.1), particularly as it relates to the finding that the remaining claims in these proceedings in this Court are based on different, and as yet untried, factual and legal claims to those in the District Court Action and the Appeal; and
c)the payment of past costs, and the provision of security for future costs, of these proceedings by Field Camp Services.
In the circumstances, the Court does not consider that, because costs remain unpaid in relation to proceedings, not between the same parties, in the District Court Action and the Appeal, Field Camp Services ought to be precluded from pursuing its claims under the CC Act and the FT Act in this Court.
A stay is also sought on the basis of the making of a Statutory Demand. In the Court’s view the claim is premature. There is no evidence before the Court as to whether the Statutory Demand will or will not be met, and only time will tell in that regard, as payment is not yet due under the Statutory Demand. It suffices to observe that:
a)there are no outstanding costs or security for costs issues in relation to this matter; and
b)if the Statutory Demand is not met, and ultimately an administrator or liquidator is appointed to Field Camp Services, these proceedings will be stayed by reason of s.471B of the Corporations Act.
There is no basis, however, on which the Court can conclude, at this stage, that the Statutory Demand will not be met. Therefore, there is no basis for concluding that these proceedings ought to be stayed because that at some future point in time s.471B of the Corporations Act may take effect. The Court will not, in the circumstances of this case, exercise its discretion to order a stay on the basis that a Statutory Demand has issued.
Conclusion and orders
The Court has concluded that the application in a case must be dismissed. There will be an order accordingly.
The Court will hear from the parties as to further directions and costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 6 July 2012
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