Joshua Brook Pty Ltd v Outdoor Centre Holdings Pty Ltd and Anor (No.2)
[2010] FMCA 446
•24 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSHUA BROOK PTY LTD v OUTDOOR CENTRE HOLDINGS PTY LTD & ANOR (No.2) | [2010] FMCA 446 |
| PRACTICE AND PROCEDURE – Application in a Case to compel the applicant to file and serve its affidavits in support of its Defence to Counter-Claim – applicant and respondents out of time for filing of affidavits – applicant’s delay a factor in awarding costs of the Application in a Case to the respondents. |
| Federal Magistrates Court Rules 2001 (Cth), Schedule 1 |
| Willis v State of Western Australia (No 2) [2009] WASCA 205 |
| Applicant: | JOSHUA BROOK PTY LTD |
| First Respondent: | OUTDOOR CENTRE HOLDINGS PTY LTD |
| Second Respondent: | PAUL NICHOLLS |
| File Number: | PEG 198 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 24 June 2010 |
| Date of Last Submission: | 24 June 2010 |
| Delivered at: | Perth |
| Delivered on: | 24 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Hassett |
| Solicitors for the Applicant: | MacKinlays Solicitors |
| Counsel for the Respondents: | Mr K. Parker |
| Solicitors for the Respondents: | Kott Gunning |
ORDERS
Notwithstanding the Orders of this Court of 6 April 2010, both the applicant and respondents have leave to file further affidavits already lodged with the Court.
The applicant pay the respondents’ costs of the respondents’ application in a case filed 21 June 2010, in the sum of $1,705.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 198 of 2008
| JOSHUA BROOK PTY LTD |
Applicant
And
| OUTDOOR CENTRE HOLDINGS PTY LTD |
First Respondent
| PAUL NICHOLLS |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from the transcript)
The Court observes, as Buss JA observed in Willis v State of Western (No 2),[1] that:
12. …apologies are a poor and unacceptable substitute for performance. If a solicitor becomes aware that he or she will be unable, for any reason, to comply with an order of the court, his or her duty is to inform the court and the other party or parties immediately of this inability, and to apply for new or varied orders by consent or otherwise. It is unprofessional to ignore or otherwise fail to comply with the orders of the court and leave it to the court or the other party or parties to take remedial or enforcement action.[2]
[1] [2009] WASCA 205 (“Willis”).
[2] Willis at para.12 per Buss JA (with whom Owen JA agreed at para.1).
In the circumstances, the Court is of the view that given that both parties were late in filing the affidavits required to be filed by the Orders of 6 April 2010, and given that those affidavits have been lodged with the Court, there ought be an Order providing that, notwithstanding the Orders of this Court of 6 April 2010, both the applicant and respondents have leave to file further affidavits already lodged with the Court.
With respect to the costs of today, there has been a delay by the applicant in the substantive proceedings in filing the affidavits in support of the Defence to Counter-Claim. Those affidavits, by reason of the Order of the Court of 6 April 2010, were required to be filed by 1 June 2010. They were not filed. There was then various correspondence exchanged between the parties and there were indications made that an affidavit in support of the Defence to Counter-Claim would be filed. The Defence to Counter-Claim was filed on 11 June 2010. No affidavit was filed in support. Thereafter, the applicant told the respondents that the affidavit would be filed on 16 June 2010. No affidavit was filed by that time and, ultimately, the Court thinks it is fair to observe that the respondents were put in a position whereby, given the fact that mediation was due to occur on 1 July 2010, they had to make the Application in a Case to ensure that the matter went to mediation on a proper footing, and that if there were affidavits to be filed by the applicant in support of the Defence to Counter-Claim, that they were filed before the mediation. As it transpires, the affidavit of James Gary Dunlop, sworn 23 June 2010, was fax filed last night, and filed formally with the Registry of the Court this morning.
In those circumstances, given the delays, the respondents are prima facie entitled to their costs. The only explanation which is tendered by the applicant is effectively the absence of their client’s principal witness, Mr Dunlop, who, according to Mr Hassett’s affidavit,[3] was absent in Albany, Esperance and Bali, celebrating his 50th birthday and his wife’s birthday in May and June of this year. In the circumstances, it appears that Mr Dunlop returned to work on 11 June, and given that he returned to work on 11 June, which is the day the Defence to Counter-Claim was filed, no satisfactory explanation has been given to the Court of the failure to file the affidavit effectively until today.
[3] Affidavit of Philip Cameron Hassett, sworn 23 June 2010.
In any event, as the Court inferred in its exchanges with Mr Hassett, there is no real explanation, given the nature and limited volume of the documents which are attached to the affidavit filed today, as to why those documents could not have been found and transmitted to Mr Dunlop by electronic means whilst he was in Albany, Esperance or Bali, and the affidavit dealt with. It does not suffice to say, for example, that he had not returned to the office, and was not able to swear the affidavit because he had not returned to the office. There is no reason why he could not swear the affidavit elsewhere and it be transmitted electronically to the solicitors and subsequently to the Court.
For those reasons, the Court is of the view that the respondents ought have the costs of their Application in a Case, and there will therefore be an Order that the applicant pay the respondents’ costs of the respondents’ Application in a Case filed 21 June 2010, in the sum of $1,705, that being in accordance with Schedule 1, the costs schedule to the Federal Magistrates Court Rules 2001 (Cth). There will be an Order in terms of the filing of the affidavits, as indicated, and the costs Order as indicated.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 30 June 2010
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