Gambaro v The Trustee for the Fountain Family Trust and the Trustee for the Telco Discretionary Trust

[2018] FCCA 4035

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v THE TRUSTEE FOR THE FOUNTAIN FAMILY TRUST AND THE TRUSTEE FOR THE TELCO DISCRETIONARY TRUST & ORS [2018] FCCA 4035

Catchwords:
INDUSTRIAL LAW – Application for security for costs – where substantive application will likely lead to an order for costs – no item in Federal Circuit Court Rules 2001 (Cth) – where Federal Court Rules 2011 (Cth) does not apply – application for security for costs dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) Schedule 1

Applicant: MICHAEL ALEXANDER GAMBARO

First Respondent: THE TRUSTEE FOR THE FOUNTAIN FAMILY TRUST AND THE TRUSTEE FOR THE TELCO DISCRETIONARY TRUST (ABN 72 604 405 360)

Second Respondent: THE FOUNTVIC DISCRETIONARY TRUST AND THE TELVIC DISCRETIONARY TRUST (ABN 45241371943)

Third Respondent: TELCAL HOLDINGS PTY LTD (ACN 111 734 475) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Seventh Respondent: TSHOPBIZ PTY LTD (ACN 603 604 066)

Ninth Respondent: MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Eleventh Respondent: DEBORAH NARELLE WILIAMS

Twelfth Respondent: MIMEBOURNE PTY. LTD. (ACN 010993450) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

File Number: BRG 1020 of 2016

Judgment of: Judge Jarrett

Hearing date: 11 June 2018

Date of Last Submission: 11 June 2018

Delivered at: Brisbane

Delivered on: 11 June 2018

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Merrell

Solicitors for the Respondents: Aitken Legal

ORDERS

1. The application in a case filed on 30 October, 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1020 of 2016

MICHAEL ALEXANDER GAMBARO

Applicant

And

THE TRUSTEE FOR THE FOUNTAIN FAMILY TRUST AND THE TRUSTEE FOR THE TELCO DISCRETIONARY TRUST (ABN 72 604 405 360)

First Respondent

THE FOUNTVIC DISCRETIONARY TRUST AND THE TELVIC DISCRETIONARY TRUST (ABN 45241371943)

Second Respondent

TELCAL HOLDINGS PTY LTD (ACN 111 734 475) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Third Respondent

TSHOPBIZ PTY LTD (ACN 603 604 066)

Seventh Respondent

MIMEVIC PTY LTD (ACN 121 325 442) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Ninth Respondent

DEBORAH NARELLE WILIAMS

Eleventh Respondent

MIMEBOURNE PTY. LTD. (ACN 010993450) AS TRUSTEE FOR THE FOUNTAIN FAMILY TRUST

Twelfth Respondent

REASONS FOR JUDGMENT

1. It seems to me that an application for security for costs in respect of part of the proceedings here as the applicant seeks, presupposes that there will be an order for costs in respect of just that part of the proceedings in respect of which the applicant seeks the order for security.  I agree that the applicant has an arguable case for costs in respect of those parts of the proceedings that are the subject of this application.

2. The three hundred and thirty eight emails – I have not read all of them, but I have read a proportion of them – are misguided, are vexatious, and in large measure are completely and utterly irrelevant to the proceedings. They represent, on the part of the applicant, attempts to harass the respondents and the respondent’s solicitors. So, there is a reasonably arguable case for an order for costs in due course. But it seems that the costs that are sought to be secured by an order in this application are to be assessed according to the Federal Court scale, and as counsel has pointed out, there is no item under Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) that might be apt to cover the costs in respect of which the security is sought.

3. But that does not mean that resort is then had to the Federal Court scale. The usual rule is that costs are assessed under schedule 1 of the Federal Circuit Court Rules, an event-based scale. And just because the scale does not respond to a cost-incurring event, does not mean that the recourse is automatically had to the Federal Court Rules 2011 (Cth). The costs of receiving and reading and responding to correspondence taken up in the other items allowed under schedule 1 of the Federal Circuit Court Rules.

4. Second, it is the case that if there was an order for security, it is likely in my view that the litigation might be stifled.  This is a natural person who is the applicant.  This is not a corporate entity, and security for costs is rarely, although not never, ordered against a natural person.  From here, there is a risk, it seems to me, that if the proceedings were stayed pending, the payment of the security and the sums sought by the respondents, that there is a likelihood that the public interest in the applicant being able to ventilate these proceedings might be stifled, and his litigation stifled.

5. I am not satisfied I ought to make an order for security for costs, nor am I satisfied that I ought to grant the alternative relief.  As a matter of discretion, I would decline to do so because there has been no attempt at enforcement of the order that has already been made in the usual way.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date: 24 July, 2020