Halpern v BWA Group Services Pty Ltd - [2013] FCA 673

FEDERAL COURT OF AUSTRALIA
Halpern v BWA Group Services Pty Ltd [2013] FCA 673

Citation: Halpern v BWA Group Services Pty Ltd [2013] FCA 673

Parties: MIRIAM HALPERN v BWA GROUP SERVICES PTY LTD and JEREMY TOWNEND

File number: SAD 129 of 2012

Judge: BESANKO J

Date of judgment: 10 July 2013

Catchwords:
PRACTICE AND PROCEDURE – application by applicant to adjourn the trial – where trial previously adjourned – where applicant seeks time to raise funds to pay for legal representation – whether there was good reason for the Court to exercise the discretion to adjourn the trial – whether the respondents would be prejudiced.

COSTS – application by respondents for the Court to fix a lump sum for costs pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) – application for the costs previously ordered on 3 June 2013 to be payable immediately – whether the Court should depart from r 40.13 of the Federal Court Rules 2011 (Cth) that provides interlocutory costs are not payable until the proceeding is finalised.

Held: The applicant’s application to adjourn the trial be refused. The respondent’s application for costs fixed in a lump sum and to be payable immediately be refused.

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) rr 40.02, 40.13

Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Life Airbag Company of Australia Pty Limited and Ors v Life Airbag Company (New Zealand) Limited and Ors (unreported 22 May 1998, Federal Court of Australia, Branson J)
McKellar v Container Terminal Management Services Limited [1999] FCA 1639
Rafferty and Others v Time 2000 West Pty Ltd (ACN 127 893 270) and Others (No 3) (2009) 257 ALR 503

Date of hearing: 3 July 2013

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 27

Counsel for the Applicant: Mr G Efron

Solicitor for the Applicant: Efron & Associates

Counsel for the Respondents: Ms R Doyle SC

Solicitor for the Respondents: Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 129 of 2012

BETWEEN:
MIRIAM HALPERN
Applicant

AND:
BWA GROUP SERVICES PTY LTD
First Respondent

JEREMY TOWNEND
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

3 JULY 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERED ON 3 JULY 2013 THAT:
1.The application to adjourn the trial be refused.

2.The application for the Court to fix a lump sum for costs pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) be refused.

3.The application for the costs previously ordered on 3 June 2013 to be payable immediately be refused.

4.The costs of today be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 129 of 2012

BETWEEN:
MIRIAM HALPERN
Applicant

AND:
BWA GROUP SERVICES PTY LTD
First Respondent

JEREMY TOWNEND
Second Respondent

JUDGE:

BESANKO J

DATE:

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: [2013] FCA 673
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Miriam Halpern applied for an adjournment of a trial against BWA Group Services Pty Ltd and Jeremy Townend, and the respondents applied for their costs to be fixed in a lump sum and payable immediately. The court was required to decide whether there was a good reason to exercise its discretion to adjourn the trial and whether it was appropriate to order the costs to be paid immediately. The court considered the reasons for the application, the potential prejudice to both parties, and relevant public interest considerations. In its decision, the court refused the applicant's application for an adjournment of the trial, finding that there was insufficient evidence to conclude that she would be represented at trial if an adjournment was granted. The court also refused to fix a lump sum for the respondents' costs and to order that those costs be payable immediately, stating that the circumstances did not warrant such an order.

The court's reasoning was based on the principle that adjournments are granted only for good reason and that the applicant's evidence was too general to establish that she would be unrepresented if the trial proceeded as scheduled. Furthermore, the court considered the potential prejudice to the respondents, including the stress on litigants and witnesses of a delayed hearing, and the public interest in not granting adjournments without good reason. The court also found that the circumstances did not warrant departing from the prima facie rule that interlocutory costs are not payable until the proceeding is finalised. As a result, the court refused both applications and ordered that the costs of the hearing be reserved.

Orders