Macteldir Pty Ltd v Dimovski

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FEDERAL COURT OF AUSTRALIA

Macteldir Pty Limited v Dimovski [2005] FCA 1528

Practice and Procedure – costs claimed against legal practitioners for alleged incompetence in propounding a notice of motion found by a Full Court not to be within the jurisdiction of the Court.

Jurisdiction of the Court – contract to enforce a settlement of a proceeding within the jurisdiction of the Court being a contract between the same parties to the original proceeding can be enforced in this Court – whether as part of the original matter or, if a separate matter as a matter arising under a law of the Parliament under s 39B(1A)(c) of the Judiciary Act as undertakings to the Court – enforcement of undertakings to the Court by procedure short of contempt.

Federal Court of Australia Act 1976 s 25(6), s 43

Judiciary Act s 39B(1A)(c)

Federal Court Rules  O 62 r 9, O 35 r 11

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Building Construction Employees’ and Builders’ Labourers’ Federation v
Commonwealth (1981) 53 FLR 396 referred to

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212applied

Darling Downs Investment Pty Ltd v Ellwood (1988) 18 FCR 510 discussed

Fencott v Muller (1983) 152 CLR 570 referred to

Hooper v Kirella (1999) 167 ALR 358 referred to

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 referred to

Levick v Commissioner of Taxation (2000) 102 FCR 155 discussed and applied

LNC Industries v BMW (Aust) Pty Ltd (1983) 151 CLR 575 discussed an dapplied

Macteldir Pty Limited v Dimovski (2003) 132 FCR 492 discussed and not followed

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733 referred to

Moorgate Tobacco v Phillip Morris (1980) 145 CLR 457 referred to

Myers v Elman [1940] AC 282 referred to

NEC Information Systems Australia Pty Ltd v Iveson (1992) 36 FCR 258 applied

Needlework Warehouse Pty Limited v Chansonette Pty Limited [2005] FCA 1525

Pallas v Finlay (1985) 61 ALR 220 discussed and distinguished

PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 discussed and applied

Philip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457 applied

Phillips v Walsh (1990) 20 NSWLR 206 discussed

Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied

Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555 referred to

Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 applied

Webb v Repatriation Commission (2000) 105 FCR 415 discussed and distinguished

Wenkart v Pantzer (No 3) (2004) 135 FCR 422 followed

Witham v Holloway (1995) 183 CLR 525

MACTELDIR PTY LIMITED v MILE DIMOVSKI AND ANOR
NSD 207 of 2001

ALLSOP J
2 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 207 of 2001

BETWEEN:

MACTELDIR PTY LIMITED
APPLICANT

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Details
Case
[2005] FCA 1528
Decision Date

CaseChat Overview and Summary

Macteldir Pty Ltd v Dimovski was a case heard by the Federal Court of Australia, where the applicant, Macteldir, sought enforcement of settlement terms against the respondents, Mr Dimovski and Rockdale Ilinden Soccer Club Inc. The central dispute revolved around the handling of a motion by the applicant's legal representatives, which the Court found to have been improperly filed, leading to a ruling that the Court lacked jurisdiction over the matter. The applicant alleged that the legal representatives, a solicitor and a barrister, had acted incompetently by filing a motion that the Court had no jurisdiction to entertain, despite warnings from the respondents. The case required the Court to address whether the legal representatives' actions constituted professional misconduct warranting a finding against them.

The legal issues at the heart of this case included whether the solicitor and barrister's conduct in filing the motion amounted to professional misconduct and if the Court had jurisdiction to make an order against them. The Court had to consider the precedent set by the Full Court's decision and the principles governing the Court's jurisdiction. Additionally, the Court needed to assess the correctness of the Full Court's decision and whether the legal representatives' actions were indeed incompetent or negligent.

In reaching its decision, the Court carefully examined the precedent set by the Full Court and noted that while it was not bound by the Full Court's decision, it would only deviate if it found the decision plainly wrong. The Court found that the Full Court's decision was distinguishable and did not need to be reconsidered on its merits. Ultimately, the Court held that the legal representatives had not acted in a manner warranting an order against them, as they had not acted incompetently or negligently. The Court dismissed the applicant's notice of motion and ordered that the applicant pay the respondents' costs, except for certain costs related to advice provided to the applicant.

Orders

Orders of the court

1. The notice of motion of the applicant filed on 24 February 2004 be dismissed.

2. The applicant pay the costs of Mr James Roskov and Mr John de Meyrick of said motion, with the exception of the costs of the argument and preparation therefor covering the asserted waiver of privilege as to advice to the applicant in July 2004.

Background

Background to the litigation

For the reasons that will become apparent, by reference to these principles, no order of the kind sought should be made against the Barrister or the Solicitor.The facts In fairness to all the parties, in particular the applicant (and its principals) it is necessary to descend into some detail in relation to the relevant circumstances. By way of introduction, the applicant complains that the Solicitor and Barrister so mishandled a motion in the Court to enforce previous terms of settlement against the respondents to the proceedings that the Court found, on a Case Stated under s 25(6) of the FCA Act, that it had no jurisdiction (that is, no authority to decide) the motion that the practitioners had caused to be filed. It was submitted that both practitioners had acted incompetently in either propounding a motion which the Court had no jurisdiction to entertain (in the face of warnings by the respondents) or in propounding a motion in respect of which there was doubt that the Court had jurisdiction to hear, without taking available steps to make good the available jurisdiction of the Court. The decision of the Full Court is reported: (2003) 132 FCR 492. In Wenkart v Pantzer (No 3) (2004) 135 FCR 422 at [94] and in Needlework Warehouse Pty Limited v Chansonette Pty Limited [2005] FCA 1525 at [67] Lindgren J said that because the Full Court’s decision was in the original jurisdiction of the Court he was not bound by it, but that he would decide inconsistently with it only if he thought it plainly wrong. The approach taken by Lindgren J to the precedential status of a decision of a Full Court sitting in the original jurisdiction would appear to be in accordance with principle: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733 at [36]-[37] and the cases there cited.In Wenkart and Needlework Warehouse his Honour found that the Full Court decision was distinguishable and did not have to decide upon the correctness of the decision. I, unfortunately, have no such luxury. I will return to this question of the correctness of the Full Court’s decision in due course. For present purposes it should be noted that these reasons should be read against the background set out in the reasons of the Full Court. Prior to the Solicitor and Barrister becoming involved, the applicant had sued the respondents, Mr Dimovski and Rockdale Ilinden Soccer Club Inc, alleging various copyright infringements by the publication of a local community telephone and advertising directory. Mr Dimovski and the principals of the applicant, Mr Mihajlov and Mr Stojanovski, were members of the Macedonian community, many of whom lived in the Rockdale and Hurstville areas of Sydney. After a mediation involving persons from the local Macedonian community, the proceeding was settled. The terms of settlement are set out in full at [5] of the Full Court’s reasons. The terms were set out in a form intended to be a court document. They were signed by the solicitors for the parties. The terms were as follows:BY CONSENT and without admission of liability the parties agree to the following orders:1.This is the full and final settlement of this matter and the Terms are not to be disclosed by any party.2.The first and second defendants will not publish, produce, distribute, promote or in anyway be related with the publication, production, distribution or promotion of any book, magazine or document which contains advertisements, pictorials or drawings with similar contents which have been copied or reproduced from the form and layout of the Macedonian Telephone Directory.3.The first and second defendants will publicly announce an apology to the plaintiffs through the Radio Station 2NBC which broadcasts in the Macedonian language within the state of New South Wales and consents to the announcement. The first and second defendants will also advertise an apology with a Macedonian newspaper which circulates in New South Wales.4.The contents of the advertisement/apology will be as agreed between the plaintiff and first and second defendants and if there is no agreement within one month from the date of these orders then both parties will be bound by the decision of the Mediators Dimitar Todorovski and Igor Aleksandrov Avramovski.5.The first and second defendants will not advertise or announce through any radio station advertisements which have been copied or reproduced from the form and layout of the Macedonian Telephone Directory.6.The first defendant will pay all legal and associated costs and disbursements in respect of these proceedings for both the plaintiff and the second defendant, on behalf of the Plaintiff agreed to be sum in the sum of [sic] $7,000.00 payable within 28 days.7.The first and second defendants will deliver to the plaintiffs the remainder of the printed directories which were printed by Rockdale Ilinden Soccer Club, which have not yet been distributed within one calendar month from the date of these orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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