Miller v Sunland Park Pty Ltd and Anor (No.2)
[2014] FCCA 1414
•4 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLER v SUNLAND PARK PTY LTD & ANOR (No.2) | [2014] FCCA 1414 |
| Catchwords: INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – pre-judgment interest – costs – application for order that an account be taken in relation to sums alleged by the first respondent to be owing – further application for stay of judgment pending taking of account or, alternatively pending determination of proceedings in Adelaide Magistrates Court between applicant, applicant’s wife and first respondent Sunland Park Pty Ltd – applications refused. |
| Legislation: Fair Work Act 2009 (Cth), ss.570, 824 Federal Circuit Court of Australia Act 1999 (Cth), s.76 Workplace Relations Act 1996, s.666 |
| Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commission( (No.2) [2013] FCAFC 25 Bostik (Australia) Pty Ltd v Gorgevski (No.2) (1992) 36 FCR 439 Byrne v Australian Airlines Ltd [1994] FCA 888; (1994) 47 FCR 300 Grout v Gunnedah Shire Council (1995) 129 ALR 372 Paras v Public Service Body Head of the Dept of Infrastructure (No.3) (2006) 152 FCR 534 Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392 Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143 McDonald v Parnell Laboratories (Aust) (No.2) (2007) 164 FCR 591 |
| Applicant: | ALEXANDER THOMAS MILLER |
| First Respondent: | SUNLAND PARK PTY LTD (ACN 064 792 632) |
| Second Respondent: | ROSS MANTON HUTCHENS |
| File Number: | ADG 259 of 2008 |
| Judgment of: | Judge Simpson |
| Hearing date: | 13 May 2014 |
| Date of Last Submission: | 13 May 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 4 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Manuel |
| Solicitors for the Applicant: | Darryl Clarke |
| Counsel for the Respondent: | Ms N Hurley |
| Solicitors for the Respondent: | Randle & Taylor Barristers & Solicitors |
ORDERS
The first respondent do pay the applicant the sum of TWELVE THOUSAND, TWO HUNDRED AND FORTY FIVE DOLLARS AND THREE CENTS ($12,245.03) by way of pre-judgment interest which sum shall be included in the sum for which judgment was given herein by order of 31 January 2014.
The applicant’s application for costs is dismissed.
The respondent’s Application in a Case filed on 2 May 2014 is dismissed.
All extant applications are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 259 of 2008
| ALEXANDER THOMAS MILLER |
Applicant
And
| SUNLAND PARK PTY LTD (ACN 064 792 632) |
First Respondent
| ROSS MANTON HUTCHENS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 31 January 2014, I made final orders giving judgment for the applicant against the first respondent and ordered that the first respondent pay the applicant damages in the sum of $35,808.08. In my reasons I indicated that I wished to hear from each of the parties on the question of pre-judgment interest on the judgment sum. The applicant had indicated in his originating application and his statement of claim that the interest and costs were sought.
As the applicant and his legal representative failed to appear at the time that judgment was delivered, I adjourned further consideration of the matter of pre-judgment interest and costs to 6 February 2014.
On 6 February 2014, the solicitor for the applicant appeared and informed the Court that the applicant’s counsel was hospitalised and unable to attend. In addition, counsel for the respondent sought an adjournment to give the parties an opportunity to “work out their financial positions” whatever that was intended to mean. Counsel for the respondents also made an oral application for a stay of judgment for the period of the adjournment. As a solicitor for the applicant then indicated that no enforcement proceedings would be commenced during the period of the adjournment, the application for a stay was not pursued. The matter was adjourned to 28 March 2014 for directions.
On 28 March 2014, counsel for the applicant was again unable to attend for health reasons. His instructing solicitor attended in his place.
Solicitor for the applicant indicated that consideration was being given to the question of the costs of the action. Counsel for the respondents submitted that costs had already been argued during submissions in the trial of the action and that no further argument was necessary. Full argument in relation to the applicant’s costs, if any, was left to the adjourned date.
Counsel for the respondents also indicated at the hearing on 28 March 2014, that her clients’ intended to make an application to have judgment recalled so that the time for any appeal would not run, or alternatively, that there be a stay of the judgment.
I made orders that the matter be adjourned to 13 May 2014 for interim argument in relation to pre-judgment interest, and any other issues that could properly be raised by an Application in a Case, filed by either of the parties during the period of the adjournment. I also made orders for the filing and service of written submissions in relation to any issues properly raised in the proposed Applications in a Case.
On 2 May 2014, the respondents filed an Application in a Case with a supporting affidavit of the second respondent. The Application in a Case sought the following orders:
“1.This application be listed for argument pursuant to the order of Judge Simpson made 28 March 2014 at 2.15pm on 13 May 2014.
2.That the order made 31 January 2014 and amended 5 February 2014 (“judgment”) be varied by offsetting the judgment sum of $35,808.08 against the sum owing by the Applicant to the First Respondent pursuant to Order 11 Rule 12 of the Federal Court Rules 1979 (now Rule 16.10 of the Federal Court Rules 2011).
3.That an account be taken pursuant to Order 39, Rule 1(a) of the Federal Court Rules 1979 (now Rule 30.51 of the Federal Court Rules 2011) to determine the sum owing by the Applicant to the First Respondent referred to in paragraph 2 hereof.
4.The First Respondent seeks a stay of the operation of the Judgment pending:
4.1the taking of accounts referred to in paragraph 3 hereof; and/or
4.2determination of the proceedings between the First Respondent, the Applicant and Mrs Miller in the Adelaide Magistrates Court, Action Number 206 of 2009.
5.If this Honourable Court rules that it will hear the Applicant’s submissions as to costs, then:
5.1the First Respondent seeks that the matter be adjourned for four (4) weeks to allow the First Respondent to respond to any submissions for costs by the Applicant;
5.2the Second Respondent seeks leave for an order that the Applicant pay the Second Respondent’s costs of the proceedings to be taxed or agreed;
5.3the First Respondent seeks leave for an order that the Applicant pay the First Respondent’s costs of those part (sic) of the proceedings upon which it was successful.
6.Any other order that this Honourable Court deems fit.”
On 13 May 2014, I heard submissions in relation to the various matters that were raised by the parties. These reasons deal with each of the topics raised.
Applicant’s application
Pre-judgment interest
The relevant sections of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCC Act”) dealing with prejudgment interest are sub-s.76(2), (3), (4), (5) and (6). They state:
“76(2) Application for interest order. A party to proceedings that are:
(a) in the Federal Circuit Court of Australia; and
(b)for the recovery of any money (including any debt or damages or the value of any goods) in respect of a particular cause of action;
may apply to the Federal Circuit Court of Australia or a Judge for an order under subsection (3).
76(3) Interest order. If:
(a) an application is made under subsection (2); and
(b)the Federal Circuit Court of Australia or the Judge is not satisfied that good cause has been shown for not making an order under this subsection;
the Federal Circuit Court of Australia or the Judge must either:
(c)order that there be included in the sum for which judgment is given interest at such rate as the Federal Circuit Court of Australia or the Judge thinks fit on the whole or any part of the money for the whole or any part of the period between:
(i) the date when the cause of action arose; and
(ii) the date as of which judgment is entered; or
(d)without proceeding to calculate interest in accordance with paragraph (c), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
76(4) Exceptions. Subsection (3) does not:
(a)authorise the giving of interest upon interest or of a sum in lieu of such interest; or
(b)apply in relation to any debt upon which interest is payable as of right, whether by virtue of an agreement or otherwise; or
(c)affect the damages recoverable for the dishonour of a bill of exchange; or
(d)limit the operation of any enactment or rule of law which, apart from this section, provides for the award of interest; or
(e)authorise the giving of interest, or a sum in lieu of interest, otherwise than by consent, upon any sum for which judgment is given by consent.
76(5) If:
(a)the sum for which judgment is given (the relevant sum ) includes; or
(b)the Federal Circuit Court of Australia in its absolute discretion, or a Judge in that Judge's absolute discretion, determines that the relevant sum includes;
any amount for:
(c)compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest or claiming a sum in lieu of interest; or
(d)compensation for loss or damage to be incurred or suffered after the date on which judgment is given; or
(e) exemplary or punitive damages;
interest, or a sum in lieu of interest, must not be given under subsection (3) in respect of:
(f) any such amount; or
(g)so much of the relevant sum as, in the opinion of the Federal Circuit Court of Australia or the Judge, represents any such amount.
76(6) Subsection (5) does not preclude:
(a) interest; or
(b) a sum in lieu of interest;
being given, under this section, upon compensation in respect of a liability of the kind referred to in paragraph (5)(c), where that liability has been met by the applicant, as from the date upon which that liability was so met.”
As mentioned previously in these reasons, pre-judgment interest was sought by the applicant in his Initiating Application.
Section 76(3) of the FCC Act requires that before making an order for prejudgment interest, the Judge must “not (be) satisfied that good cause has been shown for not making an order under this subsection”.
Counsel for the respondents submits that there is good cause in this case for not ordering pre-judgment interest. They submit that there were delays in the proceedings that were attributable to the applicant.
I disagree with the factual assertion and the conclusion reached. The applicant has presented his case in a timely fashion. An examination of the transcript of evidence indicates that the applicant, through his counsel, has been appropriately selective in relation to the issues that he chose to pursue by cross-examination and has not wasted time.
There is also criticism from the respondents of the applicant’s counsel for not referring to pre-judgment interest during the opening of his case on 1 February 2011. They submit that the issue of pre-judgment interest only arose because it was mentioned in the reasons handed down on 31 January 2014.
In my view, it was always apparent from the applicant’s case that pre-judgment interest was sought in the event that the applicant was successful with this action. It was specifically identified as a relief sought in the Initiating Application. It was unnecessary for counsel to mention during his opening that pre-judgment interest would be sought if the application were successful.
None of the submissions put on behalf of the respondents convince me that there is good reason for not awarding pre-judgment interest. I therefore propose to make such an award.
I consider that pre-judgment interest should apply to the whole of the judgment debt for the period from the date when the cause of action arose, namely 24 September 2008, and the date when judgment was entered, namely 31 January 2014. I calculate this to be a period of approximately 5 years and 4 months.
No rate of interest is fixed or prescribed in the Federal Circuit Court Rules or Regulations. Sub-section 76(3)(c) of the FCC Act gives the Federal Circuit Court a discretion as to the rate of interest that should apply. The interest rate must not however infringe the exceptions referred to in s.76(4).
Prejudgment interest is also dealt with in the Federal Court of Australia Act 1976 (Cth) (“the FC Act”). As with the legislation for this Court, no rate of interest is fixed or prescribed by the FC Act. It remains for the Federal Court to exercise a judicial discretion. The usual practice in the Federal Court has been for the Judge to adopt the rate of interest that is applied by the Supreme Court of the State or Territory in which the Federal Court is dealing with the matter.
I note also that the Federal Court Practice Note CM 16 deals with pre-judgment interest. The Practice Note has no legislative force but is something to take into account. It provides as follows:
“1.Section 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) provides for the making of orders for the inclusion of interest in judgments.
2.Practitioners and litigants should expect that where, pursuant to s.51A(1)(a), interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices of Australia and New Zealand:
(a)In respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and;
(b)In respect of the period from 1 July to 31 December in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.”
It will be seen that the Practice Note is in very similar terms to r.39.06 of the Federal Court Rules 2011 (Cth) (“FC Rules”) dealing with post judgment interest on judgment debts entered in that Court, save that 4% above the cash rate is suggested rather than the 6% suggested in r.39.06.
Counsel for the applicant provided this Court with a document summarising the amounts of interest payable calculated on the basis of a rate of 6% above the cash rate. I accept as accurate the schedule provided but propose to only allow interest calculated on the basis of 4% above the cash rate as was suggested as appropriate for pre-judgment interest in the Federal Court Practice Note. This results in a calculation of interest payable for the period 24 September 2008 up to 31 January 2014 to be $12,245.03.
When post judgment interest is taken into account, the judgment debt as at 31 January 2014 is therefore the sum of $48,053.11.
Applicant’s costs
The applicant seeks orders for costs of the action against the first respondent. The second respondent was successful in the litigation and so no costs are sought against him.
There is some suggestion that the applicant is prevented from seeking an order for costs by reason of r.21.02(1)(b) of the FCC Rules which says “that an application for an order for costs may be made within 28 days after a final decree or order is made”. In this case, the applicant in his Initiating Application and Statement of Claim filed on 11 November 2008 sought costs. The respondents were always on notice that the applicant would be seeking costs if they were successful.
The proceedings were commenced in the Court’s jurisdiction under the Workplace Relations Act 1996 (Cth) (“the WR Act”). As a result, the question of costs needs to be considered by reference to s.666 of the WR Act.
Section 666 is in these terms:
“666 Costs
(1)[Requirements for costs to be ordered] Subject to this section, a party to a proceeding under section 663 must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first‑mentioned party:
(a)instituted the proceeding vexatiously or without reasonable cause; or
(b)caused the costs to be incurred by that other party because of an unreasonable act or omission of the first‑mentioned party in connection with the conduct of the proceeding.
(2)[Court must have power] Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
(3)[Costs] In this section:
costs includes all legal and professional costs and disbursements and expenses of witnesses.”
A preliminary matter that needs to be addressed is the question of whether s.666 applies solely to the Federal aspect of these proceedings or whether it applies in addition to the common law breach of contract aspect of the matter.
In the recent case of Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commission) (No.2)[1] (“the CFMEU case”) the Full Court cited the following passage from the case of Bostik (Australia) Pty Ltd v Gorgevski (No 2)[2]:
“(T)he respondent relied on two claims. The first was pursuant to s 178 of the Industrial Relations Act for a penalty for breach of an award. In addition there was a claim made for damages for wrongful dismissal. The Full Court held that both claims arose under the industrial legislation. Justice Sheppard, with whom Heerey J agreed, said at 440-1 and 443 that the claim for wrongful dismissal was a common law claim for breach of contract but the claim depended upon there being a term of the contract of service which included the relevant provisions of the award of which the appellant was found to be in breach. The award owed its existence to the Industrial Relations Act and its predecessor, the Conciliation and Arbitration Act. The incorporation of the relevant provisions of the award did not depend on agreement but upon the award operating on the contract. Thus the claim was in reality one to enforce a right conferred by an award which was in force by reason of the operation of the Industrial Relations Act. Justice Gray held, at 446, that the subject of the appeal was a single “matter” being a controversy over the dismissal of the respondent by the appellant and the legal consequences of that dismissal. The matter manifested itself in the claims for a penalty and for damages. The matter arose under the Act because it depended for its existence upon the making of a binding award by an arbitral tribunal, exercising power under the Act. The enforcement of that award depended on s 178 of the Act.”
[1] [2013] FCAFC 25.
[2] (1992) 36 FCR 439.
The Full Court also cited the following passage from Byrne v Australian Airlines Ltd[3]:
“The respondent’s cross-appeal on the question of costs must fail. The law on this issue has been laid down clearly by the Full Court in Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537 and Thompson v Hodder [1989] FCA 493; (1989) 21 FCR 467, both of which were cited with apparent approval by the High Court of Australia in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25; (1991) 173 CLR 78 at 93, and in my judgment in Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446. The “matter” in contention in the present case is the purported dismissals of the appellants and the legal consequences of those purported dismissals. That “matter” arises under the Act by reason of the reliance of the appellants on cl 11(a) of the award, which was made under the Act, and their invocation of the jurisdiction given by s 178 of the Act. Each application dealt with by Hill J was therefore a proceeding “in a matter” arising under the Act. Severance of different causes of action in the one proceeding is not possible for the purposes of s 347 of the Act. Nor is it legitimate to attempt to characterise a proceeding by reference to its predominant element. If the Act is called in aid, the proceeding is one arising in a matter under the Act, and there exists no power to award costs. For similar reasons, these appeals are proceedings in matters arising under the Act. This Court has no power to award costs.” (emphasis added)
[3] [1994] FCA 888; (1994) 47 FCR 300.
In Grout v Gunnedah Shire Council[4], the applicant unsuccessfully claimed costs. The applicant had succeeded in an unlawful dismissal claim brought against the respondent council in the Industrial Relations Court of Australia pursuant to the Industrial Relations Act1988 (Cth) (“the IR Act”). The matter included a claim for wrongful dismissal at common law pursued in the Court’s associated jurisdiction. The applicant sought to argue the issue of costs in a number of contexts but the primary submission was that s.347 of the IR Act (which was in similar terms to s.666 of the WR Act)[5] did not preclude an order for costs in his favour, as the claim for wrongful dismissal pursued in the court’s associated jurisdiction, was not a part of a proceeding to which s.347 related. Justice Moore followed Bostik and Byrne. He held that the respondent was a party to a proceeding in a matter that comprehended the statutory claim and the common law claim to damages and the immunity that the respondent had under s.347 precluded any order for costs being made against it in that proceeding.
[4] (1995) 129 ALR 372.
[5] Section 347 of the IR Act stated:
(1)A part to the proceedings (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2)In subsection (1):
“costs” includes all legal and professional costs and disbursements and expenses of witnesses.
On the basis of these cases, and in particular, the case of Grout, it is clear that s.666 of the WR Act applies to both causes of action in the present matter. For the applicant to be awarded costs, he must satisfy the Court that the first respondent was guilty of an unreasonable act or omission in connection with the conduct of the matter. As the first respondent is a company, we look at the acts and omissions of the second respondent in so far as he can be said to be acting as agent for the company. No other person was acting as agent for the company.
The next matter to consider is the meaning of “unreasonable act or omission … in connection with the conduct of the proceedings” in s.666. The wording of s.666 is in very similar terms to provisions in other legislation and in particular industrial legislation. Decisions in relation to those other provisions are relevant to an understanding of s.666 of the WR Act.
In particular, s.570 of the Fair Work Act 2009 (Cth) (“FW Act”) is relevant. It states:
“570 Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2)The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c)the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”
It is to be noted that s.570 of the FW Act is of similar effect as s.666 of the WR Act.
The predecessor to s.570 of the FW Act, s.824 of the FW Act, was examined in Paras v Public Service Body Head of the Dept of Infrastructure (No.3)[6] where it was held at [16] that:
“The proviso to s.824(1) applies if the entire proceedings, or a step in the proceedings, has been instituted vexatiously or without reasonable cause. Section 824(2) is not confined to costs associated with the institution of the proceedings or a step in the proceedings; it extends more broadly to costs incurred as a result of any unreasonable act or omission. On a plain and natural meaning of s.824(2), there is no reason why the reference to an unreasonable act or omission that has caused another party to incur costs in connection with the proceeding should not extend to unreasonable acts or omissions in connection with an interlocutory application.”
[6] (2006) 152 FCR 534.
Whether a party has engaged in “an unreasonable act or omission” will depend upon the particular circumstances of the case. In Australian and International Pilots Association v Qantas Airways Ltd (No.3)[7] it was held at [36] that: “prosecution of any incompetent or hopeless case can be regarded as ‘an unreasonable act’ … Conversely … the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act”.
[7] (2007) 162 FCR 392.
After making the distinctions referred to above, a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Clarke[8], said at [29]:
“In our view, the respondent has not engaged in “an unreasonable act or omission”. As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable:[9]. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being “an unreasonable act or omission” for the purposes of s 824(2). True it is that the concession ultimately given by the respondent that it regarded the decision of Nicholson J as erroneous could have been given earlier. However, it was a concession which was, in light of the decision of this Court on the substantive appeal, properly made and beneficial to the appellants. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as “unreasonable” in the circumstances of this case. Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best.” (emphasis added)
[8] [2008] FCAFC 143.
[9] Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139
The failure to comply with court directions can constitute an unreasonable act or omission[10]. So too can a failure to accept a reasonable offer to settle the case.[11]
[10] Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392.
[11] McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591.
While I accept the submission put on behalf of the applicant that the length of the trial of the action was significantly extended as a result of the excessive cross-examination of the applicants’ witnesses by counsel for the respondents, Clarke’s case suggests to me that such conduct should not come within the meaning of an “unreasonable act … in connection with the conduct of the proceedings”. Something more than conducting the litigation in an inefficient way is required.
The applicant has further submitted that costs should be ordered as the respondents defended the claim with dishonest testimony and that this extended the length of the trial. I am not satisfied that any dishonesty on the part of the second respondent lengthened the trial. The lengthening of the trial was caused by excessive cross-examination of the applicants’ witnesses which, in my view, is highly likely to have occurred in any event. It is to be remembered that a costs order is not to be made to punish a party: it is to recompense a party for costs incurred.
I do not propose to make an order for costs in the applicant’s favour or at all.
Respondents’ applications
The respondents seek the following orders:
“1.…
2.That the order made 31 January 2014 and amended 5 February 2014 (“Judgment”) be varied by offsetting the judgment sum of $35,808.08 against the sum owing by the Applicant to the First Respondent pursuant to Order 11 Rule 12 of the Federal Court Rules 1979 (now Rule 16.10 of the Federal Court Rules 2011).
3.That an account be taken pursuant to Order 39, Rule 1(a) of the Federal Court Rules 1979 (now Rule 30.51 of the Federal Court Rules 2011) to determine the sum owing by the Applicant to the First Respondent referred to in paragraph 2 hereof.
4.The First Respondent seeks a stay of the operation of the Judgment pending:
4.1the taking of accounts referred to in paragraph 3 hereof; and/or
4.2determination of the proceedings between the First Respondent, the Applicant and Mrs Miller in the Adelaide Magistrates Court, Action Number 206 of 2009.
5.If this Honourable Court rules that it will hear the Applicant’s submissions as to costs, then:
5.1the First Respondent seeks that the matter be adjourned for four (4) weeks to allow the First Respondent to respond to any submissions for costs by the Applicant;
5.2the Second Respondent seeks leave for an order that the Applicant pay the Second Respondent’s costs of the proceedings to be taxed or agreed;
5.3the First Respondent seeks leave for an order that the Applicant pay the First Respondent’s costs of those part of the proceedings upon which it was successful.
6.Any other orders that this Honourable Court deems fit.”
Paragraphs 2, 3 and 4
Paragraphs 2, 3 and 4 all rely on the Court assessing the sum allegedly owing by the applicant to the first respondent. I remind the respondents that in paragraph 165 of my reasons, delivered on 31 January 2014, I stated that a cross-claim had not been filed by the respondents. Reasons for coming to that conclusion were given. I do not propose to add anything to what has been said in my reasons.
Paragraphs 2, 3 and 4 of the orders sought in the Application in a Case filed on 2 May 2014 will be dismissed.
Paragraph 5
In relation to paragraph 5 of the Application in a Case, I have already refused the application for adjournment of submissions. I made it clear to the parties in my orders of 28 March 2014 that all issues that were properly raised by either party would be dealt with by way of argument on 13 May 2014. The only outstanding issues were pre-judgment interest and the applicant’s costs. The parties each had a full opportunity to put all submissions in relation to those two outstanding issues.
Conclusions
The Application in a Case filed on 2 May 2014 is dismissed.
After making orders in relation to the remaining matters of pre-judgment interest and the applicant’s costs, I will consider myself functus officio.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 4 July 2014
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