Hydrocool Pty Limited v Hepburn (No 3)

[2010] FCA 305

FEDERAL COURT OF AUSTRALIA

Hydrocool Pty Limited v Hepburn (No 3) [2010] FCA 305

Citation:	Hydrocool Pty Limited v Hepburn (No 3) [2010] FCA 305
Parties:	HYDROCOOL PTY LIMITED (ACN 067 525 366) v IAIN MACGREGOR HEPBURN, THERMOELECTRIC APPLICATIONS PTY LIMITED (ACN 112 217 124), PETER TERENCE CLARKE, BENJAMIN BANNEY, MONTAG DAVIS, BRETT MANNERS, ROBERT WEYMOUTH, RITA CLARKE, WATER MASTER LIMITED and GARTH CLIFFORD RICHARDSON
File number:	NSD 1754 of 2006
Judge:	SIOPIS J
Date of judgment:	8 March 2010
Date of hearing:	8 March 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Mr R Cobden SC and Mr A Fernon
Solicitor for the Applicant:	Swaab Attorneys
Counsel for the First, Second and Third Respondents:	Mr J Garas
Solicitor for the First, Second and Third Respondents:	Corser & Corser
Counsel for the Fifth Respondent:	The Fifth Respondent appeared in person.
Counsel for the Sixth Respondent:	The Sixth Respondent appeared in person.
Counsel for the Seventh Respondent:	The Seventh Respondent appeared in person.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 1754 of 2006

BETWEEN: HYDROCOOL PTY LIMITED (ACN 067 525 366)
Applicant

AND:

IAIN MACGREGOR HEPBURN
First Respondent

THERMOELECTRIC APPLICATIONS PTY LIMITED (ACN 112 217 124)
Second Respondent

PETER TERENCE CLARKE
Third Respondent

BENJAMIN BANNEY
Fourth Respondent

MONTAG DAVIS
Fifth Respondent

BRETT MANNERS
Sixth Respondent

ROBERT WEYMOUTH
Seventh Respondent

RITA CLARKE
Eighth Respondent

WATER MASTER LIMITED
Ninth Respondent

GARTH CLIFFORD RICHARDSON
Tenth Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	8 MARCH 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The amount of $10,015 provided by the applicant to the eighth respondent for security for costs by way of an irrevocable bank guarantee pursuant to order 1 made by the Court on 27 June 2007 in respect of the eighth respondent’s notice of motion filed 1 June 2007 be released to the applicant forthwith.

2.The notice of motion dated 4 March 2010 is otherwise dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	NSD 1754 of 2006

BETWEEN: HYDROCOOL PTY LIMITED (ACN 067 525 366)
Applicant

AND:

IAIN MACGREGOR HEPBURN
First Respondent

THERMOELECTRIC APPLICATIONS PTY LIMITED (ACN 112 217 124)
Second Respondent

PETER TERENCE CLARKE
Third Respondent

BENJAMIN BANNEY
Fourth Respondent

MONTAG DAVIS
Fifth Respondent

BRETT MANNERS
Sixth Respondent

ROBERT WEYMOUTH
Seventh Respondent

RITA CLARKE
Eighth Respondent

WATER MASTER LIMITED
Ninth Respondent

GARTH CLIFFORD RICHARDSON
Tenth Respondent

JUDGE:	SIOPIS J
DATE:	8 MARCH 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is a notice of motion dated 4 March 2010, which has been brought on at short notice by the applicant.  In effect the applicant seeks the discharge of orders previously made, that the applicant provide security for the costs of Mr Manners, Mr Weymouth and Ms Clarke, each of whom is a self-represented respondent in this proceeding.

2. The order in relation to Mr Manners, the sixth respondent, was that the applicant provide security for costs in the sum of $6,905.  The order in favour of Mr Weymouth, the seventh respondent, was that the applicant provide security for costs in the sum of $10,000; and, in relation to Ms Clarke, the eighth respondent, that the applicant provide security for costs in the amount of $10,015.  Each of the orders was made by consent.

3. It is well-established that an award of costs is to compensate a litigant in respect of legal and other costs which are incurred by that person in the conduct of the litigation.  In other words, a litigant in person is not entitled to be compensated for the time which that person has spent in preparing a case.  However, a litigant in person is entitled to claim disbursements and other expenses which have been necessarily and reasonably incurred in the conduct of the proceeding (Von Reisner v Commonwealth (No 2) (2009) 262 ALR 430).

4. It is to be assumed that at the time that the applicant consented to these orders for security for costs, the applicant was aware of these principles and, in consenting to the orders for security for costs, made an assessment as to the amount of the disbursements and other expenses that might be reasonably incurred by these self-represented respondents.

5. The question is whether circumstances have changed since then.

6. In my view, the only factor that has changed since then is that Ms Clarke has not made a single appearance at any of the many interlocutory hearings in this matter, and, as far as I know, has not participated in the proceeding.  Mr Manners and Mr Weymouth, on the other hand, have been diligent participants in the interlocutory proceedings and the prospect of each of them having incurred compensable expenses in the conduct of this litigation, exists.  No such prospect, however, exists in relation to Ms Clarke.  Therefore, I will discharge the order in respect of Ms Clarke, but I will not discharge the orders in respect of Mr Manners and Mr Weymouth.

7. The applicant also sought the discharge of the order that it provide security for costs in the sum of $24,000 made in favour of the ninth respondent, Water Master Limited.This matter has been going on now for some four years.  Water Master was initially represented by solicitors.  Through its solicitors, it attended directions hearings until about 2008, when it ceased to have legal representation.  Although this motion was brought on at short notice, it has obviously been communicated to Water Master because Mr Hawkins, a director of Water Master, has sworn an affidavit which was faxed to the Court, opposing the applicant’s motion.  Mr Hawkins deposed that, prior to the time when Water Master ceased to have legal representation and ceased to attend the directions hearings, it had already incurred legal costs far exceeding $24,000.

8. Mr Cobden, senior counsel for the applicant, has submitted that in determining whether to release the security, I should have regard to the fact that Water Master has not attended the interlocutory hearings, which have been numerous in this case, for two years.  I am of the view that the order for security for costs in favour of Water Master should not be discharged.  There is no reason why I should not accept the affidavit evidence of Mr Hawkins that the legal costs which were incurred up until it ceased to have legal representation, were in excess of $24,000.  This seems to me a fairly modest sum in light of the amount of costs which this case has generated.

9. Accordingly, I will not discharge the order in relation to Water Master.  I will, however, make the order in para 10 of the notice of motion, discharging the order for security for costs in favour of Ms Clarke, and otherwise dismiss the applicant’s motion.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        31 March 2010