Minus v Selth (No 2)

Case [2017] FCA 1233


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

Donald Fuller v Minister for Primary Industries & Energy, National Registration Authority [1998] FCA 377

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

Minus v Selth [2016] FCA 834

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…

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AGLC
Minus v Selth (No 2) [2017] FCA 1233
Case
[2017] FCA 1233
Decision Date

CaseChat Overview and Summary

Minus v Selth (No 2) involved the applicants seeking an extension of time to object to a costs estimate. The case was heard in the Federal Court of Australia, presided over by Chief Justice Gilmour. The applicants argued that they had not received the notice of the estimate until after the deadline for objecting, and sought an extension due to this delay. The respondents argued that the notice was posted to the applicants’ address and that the applicants' failure to object within the specified time period was due to their own oversight.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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