FEDERAL COURT OF AUSTRALIA
Minus v Selth (No 2) [2017] FCA 1233
File number: NSD 1023 of 2016 Judge: LOGAN J Date of judgment: 18 October 2017 Catchwords: COSTS – notice of estimate – failure to object to costs estimate in accordance with Rules – certificate of taxation – application for an extension of time to file notice of objection – factors relevant to exercise of discretion – acceptable explanation – arguable case – absence of prejudice – application dismissed
PRACTICE AND PROCEDURE – costs – notice of estimate – meaning of issue of notice – notice posted by taxing officer to specified address for service – no proof of non-delivery – absence of receipt by party until after time for objection irrelevant
PRACTICE AND PROCEDURE – procedural fairness – litigants in person
Legislation: Acts Interpretation Act 1901 (Cth) s 29
Corporations Act 2001 (Cth) s 471B
Federal Court of Australia Act 1976 (Cth) ss 4, 37P
Federal Court Rules 2011 (Cth) r 2.16, r 4.01, r 11.01, r 35.11, r 35.14, r 39.05, r 40.18, r 40.19, r 40.20, r 40.21, r 40.32
Cases cited: Capper v Thorpe (1998) 194 CLR 342
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Finch v The Heat Group Pty Ltd (No 3) [2016] FCA 102
Gallo v Dawson (1990) 64 ALJR 458
Ralph v Repatriation Commission (2016) 248 FCR 438
Selth v Australasian Barrister Chambers Pty Ltd (2015) 243 FCR 423
Territory Realty Pty Ltd v Garraway (No 3) [2013] FCA 914
Tinkler v Elliott [2012] EWCA Civ 1289
Date of hearing: 18 August 2017 Date of last submissions: 9 September 2017 (Applicants)
22 September 2017 (Respondents)Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Trade Marks Category: Catchwords Number of paragraphs: 53 Counsel for the Applicants: The applicants appeared in person Counsel for the Respondents: Mr M O’Meara ORDERS
NSD 1023 of 2016 BETWEEN: DEREK MICHAEL MINUS
First Applicant
DISPUTE RESOLUTION ASSOCIATES PTY LTD ABN 50 090 594 451
Second Applicant
AUSTBAR PTY LTD ACN 608 133 768 (and another named in the Schedule)
Third Applicant
AND: PHILIP SELTH IN A REPRESENTATIVE CAPACITY FOR THE MEMBERS OF THE AUSTRALIAN BAR ASSOCIATION
First Respondent
ABA AUSTRALIAN BAR ASSOCIATION LTD ACN 605 949 148
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
18 OCTOBER 2017
THE COURT ORDERS THAT:
1.The requirement for the applicants to file an interlocutory application for an extension of time within which to:
(a)file a notice of objection, in accordance with Form 128; and
(b)pay into the Litigants’ Fund an amount of $2,000 as security for costs of any taxation of the bill;
be dispensed with.
2.The applicants be deemed to have filed and served such an interlocutory application on 1 March 2017, the date upon which the affidavit of Derek Michael Minus filed on 26 June 2017 was made.
3.The interlocutory…
Continue reading Minus v Selth (No 2)
Sign in free to access the full text
- AGLC
- Minus v Selth (No 2) [2017] FCA 1233
- Case
- [2017] FCA 1233
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicants had a valid reason for not objecting to the costs estimate within the prescribed time and whether the applicants could be granted an extension. The court also had to consider the procedural fairness towards the litigants who were representing themselves. The key legal issues included the meaning of "issue of notice" under the rules, the requirement of procedural fairness in the context of litigants in person, and the factors relevant to exercising the court's discretion in granting an extension.
The court found that the notice of estimate was effectively issued when it was posted by the taxing officer to the specified address for service, and there was no evidence that the applicants did not receive it. The absence of receipt by the applicants until after the time for objection was irrelevant. The court held that the applicants had not provided an acceptable explanation for their delay, and the application for an extension of time was dismissed. The court also found that the applicants had failed to demonstrate any prejudice that would warrant an extension of time.
The court dismissed the interlocutory application and ordered the applicants to pay the respondents’ costs of and incidental to that application, to be taxed if not agreed. This decision underscores the importance of timely objections to costs estimates and the need for litigants to adhere to procedural requirements.
Orders
Orders of the court
1. The requirement for the applicants to file an interlocutory application for an extension of time within which to:
(a) file a notice of objection, in accordance with Form 128; and
(b) pay into the Litigants’ Fund an amount of $2,000 as security for costs of any taxation of the bill;
be dispensed with.
2. The applicants be deemed to have filed and served such an interlocutory application on 1 March 2017, the date upon which the affidavit of Derek Michael Minus filed on 26 June 2017 was made.
3. The interlocutory application as so deemed be dismissed.
4. The applicants pay the respondents’ costs of and incidental to that interlocutory application, to be taxed if not agreed.
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.