John Benjamin v GB Franchising Australia Pty Limited
[2010] ACTCA 4
•17 February 2010
JOHN BENJAMIN v GB FRANCHISING AUSTRALIA PTY LIMITED
[2010] ACTCA 4 (17 February 2010)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 30 - 2007
No. SCC 441 of 2006
Judge: Higgins CJ
Court of Appeal of the Australian Capital Territory
Date: 17 February 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 30 - 2007
) No. SCC 441 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN BENJAMIN
Appellant
AND:G B FRANCHISING AUSTRALIA LIMITED (ACN 105 196 389)
Respondent
ORDER
Judge: Higgins CJ
Date: 17 February 2010
Place: Canberra
THE COURT ORDERS THAT:
The orders of Gray P of 9 July 2009 be set aside.
The orders of Refshauge J of 1 July 2008 granting a stay of the orders of Crispin J be reinstated.
IN THE SUPREME COURT OF THE ) No. ACTCA 30 - 2007
) No. SCC 441 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JOHN BENJAMIN
Appellant
AND:G B FRANCHISING AUSTRALIA LIMITED (ACN 105 196 389)
Respondent
Judge: Higgins CJ
Date: 2010
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
The substance of the application before me is to set aside the order made by President Gray on 9 July 2009, which had dismissed the appeal of the appellant against an order of Crispin J. The order, in effect, had found that Mr Benjamin was liable to pay the sum of about $58,000, it is now calculated at $99,000 including interest, in respect of the costs of a liquidation of the respondent. The major point of contention in respect of that is whether his undertaking which he gave before Crispin J, to effectively make good any shortfall between the solvency of the respondent and its actual position, was such as to cover the costs of the administration of the liquidation. That is the essence of the dispute. Refshauge J found, and I do not disagree with this, that there is a question to be considered there. It is a question of law, a question of construction and can readily be resolved on an appeal, as the appellant, indeed, instituted for that purpose.
The question then though is this. The appeal itself was dismissed for want of prosecution. It was dismissed by President Gray on 9 July 2009. Prior to that time there seems to me to be some confusion about this, none from the point of view of the respondent, but certainly from the point of view of the appellant. It appears that the respondent, by way of a notice dated 12 March 2009 and filed in these proceedings, made an application that the appeal be dismissed for want of prosecution and various ancillary orders be set aside; a reasonable enough application in the circumstances. There had been no compliance or no substantial compliance by then or up to then with orders made which had, effectively, permitted the appeal to proceed, one of which was the provision of $5000 by way of security for costs. There may have been some suggestions that it had been complied with, but there is certainly no evidence that it was.
That application came, as I say, before Gray P on 9 July. On that day Mr Thomas, instructed by Mr Barker, who has given evidence here today, appeared and stated effectively that they wished to withdraw from representing the appellant. It appears that arose from the fact that Mr Stavros had been consulted, once the application came to the notice of Mr Barker. The fact that no earlier notice had been given to him is not the fault of the respondent, I make that quite clear. It appears that there had been a communication sent by solicitors for the respondent, but for reasons which appear to be not quite clear to me, the post office declined to deliver such a document. There was an email sent which would have conveyed the same information, but, for whatever reason, that did not come to Mr Barker’s attention. When I say for whatever reason, it appears it went to the solicitor in question who had been placed upon the notice of appearance. It was not his matter, but he ought to have, had he noticed the email, drawn it to Mr Barker’s attention. For whatever reason he did not notice it or did not realise its significance and it did not come to Mr Barker’s attention. He says that and I, of course, accept that.
On the day in question, that is 9 July, Mr Barker was faced with an application, he did not know what it was or what supported it. He got in touch with Mr Stavros. Mr Stavros, it appears, was not able to get any kind of proper instructions from Mr Benjamin and I do not know what was conveyed precisely between Mr Stavros and Mr Barker, but the end result was that Mr Barker said he would not accept any instructions. He was not funded and obtained Mr Thomas’s consent for him to go over and make an application before President Gray for he, Mr Baker, to be relieved of being the solicitor on the record. I notice it was the person named on the notice of appearance who, in fact, was so relieved, being Mr Barker’s employee.
In those circumstances, it is plain that the application was granted ex parte and it is open to the appellant to apply to set aside that order, dependant on a number of matters being addressed. The first matter such an applicant has to address is, of course, the reason for the failure to appear in the first place. That has been addressed. As I say, it discloses no fault on the part of the respondent, but it also discloses that the appellant was, for reasons which do not include “I do not wish to proceed with this appeal”. It means that there was no appearance effective to oppose the application or, indeed, to consent to it if that be the case. It was ex parte and there was a not unreasonable reason for that being so at the time. The next question is the substantive one which is first of all non‑compliance with previous orders, a reasonable case to be prosecuted on the appeal.
Refshauge J has already dealt with the latter and I do not propose to deal with it again, except to say I do not disagree with what his Honour had to say about that. There is a real question to be determined on the appeal. The next question is the failure to comply with previous orders. Does that imply that the appeal should be dismissed or the dismissal should stand? That is, to some extent, a close run thing, but it depends on this. There was an order made for security of costs to be provided. There is some doubt about whether it has been complied with, but if it has not been complied with I can see no excuse for the appeal to proceed. It would simply be a case where one would be satisfied that the appellant was simply padding out time to enable a delay in the inevitable, at least as he perceived it. If that be the case then the order for dismissal should stand.
I understand from Mr Cook that the appeal papers are now ready to be filed and delivered, so nothing stands in the way procedurally with the appeal being listed for the next sittings of the Court of Appeal. The only thing that does stand in the way is the provision of security for costs and I think that can be dealt with by directions. As I said in argument I am reluctant to make a self‑executing order, but I think this is a case where it should and could be made, given the history of the matter. So what I would propose to order is that, subject to within seven days, appeal books being filed and delivered and the $5000 being paid or having been paid, as the case may be, that the order dismissing the appeal be set aside and the appeal be referred to the listing clerk for listing at the end of that seven days.
I will simply say that at this stage and invite any further submissions if you wish to make them, but it seems to me that in the circumstances as they have obtained, the respondent should have the costs of and incidental to this and that application.
I will make it plain that in the event that those two matters that I have directed are not complied with the appeal will stand dismissed.
I simply reinstate the order of Refshauge J, on the same terms.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 25 February 2010
Counsel for the Appellant: Mr R Cook
Solicitor for the Appellant: Fong & Co
Counsel for the Respondent: Mr J A Larkings
Solicitor for the Respondent: Williams Love & Nicol
Date of hearing: 17 February 2010
Date of judgment: 17 February 2010
0
0