Gould, J.P.T v Barron, A.M.N

[1994] FCA 455

4ss 9 y

JUDGMENT No. ..A ........ .r

BETWEEN:

Applicant

First Respondent

\ PT1

LIMITED

Second Respondent

-

Third Respondent

Fourth Respondent

BmLUKEB

Fifth Respondent

-	Sixth Respondent
LIVINGSTONE NI= Seventh Respondent

sQ8&t:  HILL J

u!&GE: SYDNEY

Qm.m: 2 JUNE 1994

FOR JUD-

of the second proceedings was an abuse of process.

In a judgment given earlier this afternoon I set out the background of the motions presently before me. For present purposes there are two issues which arise. The first is whether I should make some order to protect the respondents in respect of the costs which were ordered in their favour in the initial proceedings. The second is the issue, to which I averted earlier (in an ex tempore judgment of 2 June 1994 which dealt with a separate issue), of whether the institution

Bills of costs have now been filed and served by the respondents to the first proceeding and an assessment of costs has been made by a Registrar in respect of the costs of the first and second respondents, but not in respect of the costs of the sixth and seventh respondents. Counsel for the respondents submits that I should make orders, in effect, requiring amounts to be paid into Court as a condition to allowing the second proceedings to be continued. The amount suggested to be paid is effectively the sum assessed in the case of the first and second respondents and an amount equivalent to that in respect to the sixth and seventh respondents.

Mr Kelly submits that his client should not be required to pay any costs until there has been proper taxation and all avenues available to his client have been pursued. He says that there is a dispute as to the appropriate amount to be allowed in taxation and draws my attention to the Supreme

disbursemente claimed by the sixth and seventh respondents,	Court scale of costs as indicative of the fact that the	and apparently allowed by the Registrar in the assessment in respect of the first and second respondents' costs, were excessive.
There was considerable argument before me as to whether empowered by virtue of 0.22 r.8 of the m m
authorised staying the present proceedings until the bills of costs was taxed and paid. That rule provides as follows:

"Where-

(a) a party discontinues proceedings so far as concerns the whole or any part of any claim for relief;

(b) he is, by reason of the discontinuance, liable to pay the costs of another party occasioned by the proceeding; and

(c) before payment of the costs, he brings against another party a further proceeding on the same or substantially the same cause of action as that on which the discontinued proceeding was brought,

the Court may stay the further proceeding
until those costs are paid."

The rule when originally proclaimed would probably have contemplated only a case where proceedings were commenced initially in this Court and where the second proceedings were also commenced in this Court. It is unlikely that the rule

contemplated the prospect of transfers of matters from the	Supreme Court to this Court or vice versa. As a matter of
construction it is clear that the first proceeding must have been in this Court to have had an order of costs made and the second proceeding, at least, must be in this Court at the time that an order of costs is made in respect of that proceeding.
On the other hand, the rule is wide enough as formulated to comprehend a case where the second proceedings was commenced in another court but transmitted to this Court. The view that it should be so construed is reinforced by

. . .

-

s.ll(3) of the Jurlsdlctlon of Courts (Cross Ves-	1987
(Cth) which provides:

"Where a proceeding is transferred . . . from another court the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court . . . had been taken in the transferee court. "

With the aid of that statutory deeming it seems to be that the provisions of 0.22 r.8 are sufficient to empower me to make the order sought. However, if that were not the case, it is, in my view, power to make that order by virtue of 6.23 of the Federel Court of Aus- 1976 (Cth) which empowers the Court, in relation to a matter in which it has jurisdiction, to make orders of such kinds including interlocutory orders as the Court thinks appropriate. That

proceedings to the extent that such orders are not covered by	section has been held to empower the making of orders to stay
the specific provisions of the rules.
I am of the view that the present case is an appropriate case to make an order staying the proceedings. First, it is clear that the factual matrix pleaded and relied upon in the new proceedings is precisely the same as that which was relied upon in the old proceedings. Second, so far as the respondents to the old proceedings are concerned, the causes of action appear to be the same in the new proceedings as they were in the old, that is to say, claims arising under
the Trade 1974 (Cth), claims in fraud and claims
in negligence.
The stay, of course, would not operate in respect of the proceedings brought against persons who were not parties to the original proceedings, as the claims against them are made for the first time and clearly were not in any way litigated in the earlier proceedings. In this context I note the concession that was made by Mr Kelly on behalf of Mr Gould that there is no further material fact known today that was not either pleaded or in evidence at the hearing before me last year.
A submission that there was no suggestion that Mr Gould was impecunious seems to me not to the point. So far as
of his assets but the question of impecuniosity is not, in my it matters, he has not chosen to put any evidence to the Court
view, of great relevance when what is involved is proceedings being commenced a second time after they had occupied court time in hearing on a previous occasion.
So far as the second matter is concerned, the applicants to the motion have not, in my opinion, made out a case that the proceedings had been commenced by Mr Gould for an improper purpose. Mr Gould, in the witness box, gave evidence that he had been advised by his solicitor to commence the new proceedings so as to include a common law claim. There is some difficulty in understanding that evidence so far ae it relates to the initial respondents as the proceedings were amended at the hearing to include such a common law claim but I accept the suggestion that that advice was given in the context of permitting a common law claim to be brought against other people.

Mr Gould said, and there was no evidence from which

I should infer that his evidence should not be accepted, that

the new proceedings were commenced at the time they were because of a fear that a three year limitation period would shortly expire. He suggested that the limitation period was to expire on 5 December 1993. There is some difficulty about this too in that there seems to be no suggestion that any loss was suffered by Mr Gould on 5 December 1990 but rather, if any

However, Mr Gould in his evidence said that while he did	loss was suffered, that was at a much later point of time.
consider the possibility of a compromise being reached with the respondents whereby he gave up the new proceedings he had initiated on the basis that the respondents would give up the orders of costs which they had obtained, he denied that that was one of the motivation8 taken into account by him in commencing the new proceedings. He gave this evidence on oath and as there was no evidence to the contrary, I would accordingly accept that evidence. From this, of course, it follows that the applicants to the motion have not shown any collateral purpose such as to found the suggestion that the proceedings were an abuse of process. No suggestion is made that the proceedings are so unlikely to succeed that they are for that reason an abuse of process.
It follows then that I would order that the proceedings, so far as they concern the first and second, and the sixth and seventh respondents, be stayed pending the issue of a Certificate of Taxation in respect of costs and the payment thereof or agreement between the parties as to the quantum of the costs and payment thereof, but with liberty on the part of those respondents to have the matter restored to the list on seven days' notice if required. I would otherwise dismiss the motion.

I make no order as to costs in the motion.

I certify that this and the

preceding six (6) pages
are a true copy of the Reasons

for Judgment herein of his Honour

Mr Justice Hill.

Associate: H%% Date : g r*-/qq+

Solicitors for Applicant:	T D Kelly & CO
Counsel and Solicitors	J Gleeson instructed by
for First and Second	Greaves Wannan & Williams
Respondents:
Solicitors for Fourth	Abadee, Dresdner & Freeman
Respondent:
Counsel and Solicitors	N A Cotman instructed by
for Sixth and Seventh	Tress Cocks & Maddox
Respondents:
Dates of Hearing:	2 June 1994
Date Judgment Delivered:	2 June 1994