Michael Wilson & Partners Ltd v Porter (No 5) - [2025] FCA 5

FEDERAL COURT OF AUSTRALIA
Michael Wilson & Partners Ltd v Porter (No 5) [2025] FCA 5

File number: NSD 767 of 2021

Judgment of: COLVIN J

Date of judgment: 13 January 2025

Catchwords: PRACTICE AND PROCEDURE - where orders made pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) for costs to be quantified on a lump sum basis by a registrar acting as a referee – application to extend time for seeking orders to the effect that the report of the referee not be adopted – application refused – consideration of procedural orders to be made as to adoption of referee’s report – directions made to allow for application to adopt report of registrar acting as referee to be made by email to associate to the case managing judge

Legislation: Federal Court Rules 2011 (Cth) r 28.67

Cases cited:
Finnegan v Washington (No 4) [2024] FCA 1054

Michael Wilson & Partners Ltd v Porter (No 4) [2024] FCA 163

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 27

Date of hearing: Determined on the papers

Counsel for the Applicant: No appearance

Counsel for the Respondents: No appearance

ORDERS

NSD 767 of 2021

BETWEEN:
MICHAEL WILSON & PARTNERS LTD

Applicant

AND:
JASON LLOYD PORTER

First Respondent

RICHARD MORETTI

Second Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

13 JANUARY 2025

THE COURT ORDERS THAT:
1.The application by the applicant to further extend the time within which any application pursuant to r 28.67(1) of the Federal Court Rules 2011 (Cth) (Application to Extend Time) for any order other than an order that the report be adopted may be filed be determined on the papers.
2.The Application to Extend Time is refused.
3.Upon the bringing of an application by the respondents for an order pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) in respect of the referee report dated 18 November 2024, it be ordered that the referee report be adopted and the quantum of the costs that the applicant was ordered to pay to the respondents by orders dated 28 February 2024 be fixed in the amount of $16,322.38.
4.There be leave to the respondents to make an application for the purposes of order 3 by email to the associate to the case managing judge.
5.No further document may be filed in these proceedings by the applicant without leave first having been obtained from the case managing judge.

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

REASONS FOR JUDGMENT
COLVIN J:

Michael Wilson & Partners Ltd was ordered to pay the costs of and incidental to its interlocutory application for an extension of time in which to seek a review of an assessment of costs undertaken by a registrar of this Court. The costs order was in favour of the respondents to that extension of time application,…

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: [2025] FCA 5
Decision Date: 13 January 2025

CaseChat Overview and Summary

The case of Michael Wilson & Partners Ltd v Porter (No 5) involved a dispute over costs following proceedings in the Federal Court of Australia. The plaintiff, Michael Wilson & Partners Ltd, sought to challenge an order made by a registrar acting as a referee under section 54A(1) of the Federal Court of Australia Act 1976 (Cth) which quantified the costs to be paid to the defendant, Porter. The plaintiff applied for an extension of time to seek orders regarding the adoption of the referee's report, which was ultimately denied by the court.

The legal issues before the court centred on the procedural aspects of adopting the referee's report and the appropriate time frames for making such applications. Specifically, the court had to consider whether the plaintiff was entitled to an extension of time to challenge the referee's report and if so, what procedural steps should be taken to do so. The court also had to determine the appropriate method for the defendant to apply for the adoption of the referee's report once it was due.

In its decision, the court rejected the plaintiff's application for an extension of time to seek orders regarding the adoption of the referee's report. The court emphasised the importance of adhering to the timelines set for such applications and noted that the plaintiff had already been granted extensions in the past. The court also made directions to allow the defendant to apply for the adoption of the referee's report via email to the associate of the case managing judge, ensuring that the process was efficient and timely. The court fixed the quantum of costs to be paid by the plaintiff, reflecting the amount determined by the referee.

The final orders of the court were that the application for an extension of time was refused, and the report of the registrar acting as a referee was to be adopted. The quantum of the costs was fixed, and leave was granted for the defendant to apply for the adoption of the referee's report by email. Additionally, the court imposed a restriction on the plaintiff's ability to file further documents without leave from the case managing judge, ensuring that the proceedings remained focused and efficient.

Orders

Orders of the court

1. The application by the applicant to further extend the time within which any application pursuant to r 28.67(1) of the Federal Court Rules 2011 (Cth) (Application to Extend Time) for any order other than an order that the report be adopted may be filed be determined on the papers.

2. The Application to Extend Time is refused.

3. Upon the bringing of an application by the respondents for an order pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) in respect of the referee report dated 18 November 2024, it be ordered that the referee report be adopted and the quantum of the costs that the applicant was ordered to pay to the respondents by orders dated 28 February 2024 be fixed in the amount of $16,322.38.

4. There be leave to the respondents to make an application for the purposes of order 3 by email to the associate to the case managing judge.

5. No further document may be filed in these proceedings by the applicant without leave first having been obtained from the case managing judge.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 767 of 2021
Judgment of:	COLVIN J
Date of judgment:	13 January 2025
Catchwords:	PRACTICE AND PROCEDURE - where orders made pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) for costs to be quantified on a lump sum basis by a registrar acting as a referee – application to extend time for seeking orders to the effect that the report of the referee not be adopted – application refused – consideration of procedural orders to be made as to adoption of referee’s report – directions made to allow for application to adopt report of registrar acting as referee to be made by email to associate to the case managing judge
Legislation:	Federal Court Rules 2011 (Cth) r 28.67
Cases cited:	Finnegan v Washington (No 4) [2024] FCA 1054 Michael Wilson & Partners Ltd v Porter (No 4) [2024] FCA 163
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	27
Date of hearing:	Determined on the papers
Counsel for the Applicant:	No appearance
Counsel for the Respondents:	No appearance

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	13 JANUARY 2025