Naroth v Innovative Hair Loss Solutions Pty Ltd and Ors (No.4)
[2013] FCCA 133
•24 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAROTH v INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD & ORS (NO.4) | [2013] FCCA 133 |
| Catchwords: WORDS AND PHRASES – “document in the proceeding”. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s.79 Federal Circuit Court Rules 2001 (Cth) rr.2.08(4), 29.04 Federal Court Rules 2011 (Cth) rr.2.32, 36.08(1) Evidence Act 1995 (Cth) Part 1 Federal Magistrates Act 1999 (Cth), ss.76 and 77 |
| Cases cited: Alexander & Ors v Cambridge CreditCorporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 Commonwealth Bank of Australia v Barker [2012] FCA 1076 Henderson & Ors v Amadio Pty Ltd & Ors (No.3) (1996) 65 FCR 66 Karsten v Federal Republic of Germany [2008] FCA 331 Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No.3) [2013] FMCA 209 O’Donoghue v Administrative Appeals Tribunal and Ors [2012] FMCA 964 |
| Applicant: | NANDITA RAGINI NAROTH |
| First Respondent: | INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD |
| Second Respondent: | DEREK BEST |
| Third Respondent: | DEBRA BEST |
| Fourth Respondent: | ALEXANDRA MCCLUNIE |
| File Number: | PEG 119 of 2010 |
| Judgment of: | Judge Lucev |
| Hearing date: | 24 April 2013 |
| Date of Last Submission: | 24 April 2013 |
| Delivered at: | Perth |
| Delivered on: | 24 April 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr A Metaxas |
| Solicitors for the Respondents: | Metaxas & Hager |
ORDERS
The applicant’s application in a case filed on 18 April 2013 be dismissed.
The applicant’s application for leave to appeal order (1) of the Court’s orders made on 24 April 2013 is dismissed.
The applicant pay the respondent’s costs of the application in a case filed 18 April 2013 in the sum of $2553 within 7 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 119 of 2010
| NANDITA RAGINI NAROTH |
Applicant
And
| INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD |
First Respondent
| DEREK BEST |
Second Respondent
| DEBRA BEST |
Third Respondent
| ALEXANDRA MCCLUNIE |
Fourth Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from the transcript)
Previous judgment and orders
In Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No.3) [2013] FMCA 209, the Federal Magistrates Court concluded as follows, at paras.137-139:
137. The Court has concluded that
(a) the applicant is entitled to judgment in the sum of $2253.63 (plus interest) on her claim for monies due but not paid under invoice 78 rendered on 9 April 2010, but otherwise the applicant’s claim is dismissed;
(b) the first respondent is entitled to judgment on its counterclaim in the sum of $14,437.50 (plus interest); and
(c) the applicant’s applications in a case filed 4 February 2011 and 25 July 2011 be dismissed.
138. Interest will be at the rate of 6% per annum both pre and post judgment: Federal Magistrates Act 1999 (Cth), ss.76 and 77.
139. With respect to costs, the Court has determined that it is appropriate to hear further from the parties with respect to costs once the parties have had an opportunity to digest these Reasons for Judgment. For that reason there will be orders requiring the parties to file and serve written submissions with respect to costs, and costs schedules, before a short hearing on costs listed not before 11:00 am on 17 May 2013.
The Federal Magistrates Court made orders on 28 March 2013 in those terms and specifically as to costs, order 4 was as follows:
(4) As to costs:
(a) the applicant and respondents to file and serve written submissions and costs schedules, on the basis of the costs schedule at Schedule.1 to the Federal Magistrates Court Rules 2001 (Cth), by 12 April 2013;
(b) the applicant and respondents to file written submissions in response to the written submissions filed under paragraph (a) by 26 April 2013; and
(c) the issue of costs is listed for hearing at not before 11.00am on 17 May 2013 for not more than one hour, with the applicant and the respondents’ submissions limited to not more than one half hour.
Application in a case
On 18 April 2013, an application in a case was filed in this Court by the applicant. That application in a case seeks the following orders:
(1) The orders and proceedings of the final judgment in PEG119/2010 be stayed pending the hearing and determination of the appeal filed in the Federal Court.
(2) The applicant, a self-represented litigant, seeks permission to view and make notes, at the Court registry, the transcript of the hearing of PEG119/2010.
(3) Pursuant to order 4(b) of the orders of the Court made on 28 March 2013, the applicant be granted adequate time to prepare the written submissions in response to the written submissions filed by the respondents.
(4) The hearing date 17 May 2013 for costs in the Federal Circuit Court be vacated.
The application in a case was supported by an affidavit sworn by the applicant on 18 April 2013, and it is relatively short and probably easiest if simply read into the transcript:
1. On Friday, 12 April 2013 I filed a Notice of Appeal with the Federal Court and served a copy on the respondents’ lawyers, Metaxas & Hager the same day. The call-over date for the Notice of Appeal is scheduled for 17 July 2013: Annexure 1
2. On 15 April 2013 I wrote to the respondents’ lawyers about staying the proceedings in the Court pending the hearing and determination of my appeal in the Federal Court. Annexure 2 is my email to Metaxas & Hager and their reply to me.
3. The respondents have responded to my Notice of Appeal by their letter of 16 April 2013: Annexure 3
4. Having regard to the respondents’ abovementioned letter, I shall be amending the grounds of appeal.
5. In the judgment handed down on 28 March 2013, the honourable judge, in his reasons for judgment has made extensive reference to the transcript of the hearing.
6. In order to make necessary amendments to the grounds of appeal and progress the appeal, I require access to the transcript.
7. I am unable to afford a lawyer and I have filed the appeal with the Federal Court as a self-represented litigant under financial hardship.
8. I called Auscript last week and was informed by them that the transcript of the hearing will cost in the range of about $12,000 to $13,000. I am unable to pay for the transcript and purchase it from Auscript.
9. I need access to the Court’s copy of the transcript at the Court registry to view and make notes in order to prepare for the appeal.
10. The respondents have served on me a copy of their costs submissions filed with the Court on 12 April 2013.
11. I am in the process of understanding their submissions on costs and I find that it is a specialised area for which I need more time to make my submissions in response.
12. Pursuant to order 2 of the Orders of the Court of 28 March 2013, the respondents have written to me on 10 April 2013: Annexure 4
13. I seek a stay of execution of the Judgment of the honourable Judge made 28 March 2013 so that the appeal can be first argued and decided. If the appeal successful then much time, cost and court resources will be wasted if execution and assessment of costs proceed.
Stay pending appeal
The applicant firstly seeks to stay the orders and future costs proceedings in this Court, pending the outcome of an appeal filed in the Federal Court.
The respondents’ position is that the stay is not agreed and that was conveyed to the applicant by way of an email dated 15 April 2013, which is in the applicant’s affidavit.
The Court notes that at the time the request for a stay was sent to the respondent by the applicant, the applicant was already in default under order 4(a) of the orders of 28 March 2013. The Court notes that today the applicant asserted that because she was a self-represented litigant, that she really had no submissions to make with respect to the costs of the hearing insofar as she was successful. That was the first time that such a claim had been made in this Court.
The Federal Circuit Court Rules 2001 (Cth), r.29.04 (“FCC Rules”), provides that:
A party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.
The Court also notes Federal Court Rules 2011 (Cth) (“FC Rules”), r.36.08(1), which might apply in the absence of a relevant rule of this Court or to fill any gaps, but which expressly notes that an appeal does not, of itself, operate as a stay and does not invalidate any proceedings already taken.
The relevant principles with respect to a stay are set out in the authorities referred to by the respondent in their outline of submissions, which the Court will treat as having been filed today in court.
The principles can be summarised thus:
a)a successful party is entitled to the benefit of the judgment obtained;
b)there is a presumption that the judgment obtained is correct;
c)that the exercise of the discretion as to whether to order a stay or not requires a consideration of:
(i)whether the grounds of appeal are arguable or, at the very least, that an appropriate case has been demonstrated;
(ii)where the balance of convenience lies;
(iii)whether the appeal would be rendered nugatory if a stay is not granted, or at least it would not be possible for the successful appellant to be restored substantially to their former position if judgment is executed; and
(iv)where a sum of money has been ordered to be paid that there would be no reasonable prospect of getting back monies paid under the judgment of the appeal succeeded.
See Commonwealth Bank of Australia v Barker [2012] FCA 1076, Henderson & Ors v Amadio Pty Ltd & Ors (No.3) (1996) 65 FCR 66 and Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 in regard to those principles.
The sums of money ordered to be paid in these proceedings are small, even taking account of the fact that the applicant is a self-represented litigant and that the respondent, on the face of the record, is a small to medium sized enterprise. There is sufficient evidence and the judgment sum is small enough, that the Court can conclude that the respondent will be able to repay the judgment sum, if the applicant were to be successful in the appeal.
The appeal grounds, as presently drafted, appear, with respect, to be vague. The applicant conceded today that they are not specific and it is effectively conceded that they are in part, at least, unarguable. The applicant in response to correspondence from the respondents intimating that an application to strike the appeal out was likely to be made has indicated, and indicated again in Court today, that she will be amending the grounds of appeal to make them more specific. In those circumstances it is not possible given that the form of those amendments is not before for the Court to reach any conclusion with respect to whether or not the amended grounds of appeal are likely to be arguable. In any event, no appropriate case is demonstrated.
The applicant’s affidavit says nothing other than that she has written to the respondents in relation to requesting agreement to a stay. The respondents have replied, and the reply, which is annexed in the affidavit, indicates a refusal to consent to a stay and the applicant concedes that there will now be amended grounds of appeal.
The email requesting the stay sent by the applicant to the respondent pleads as a basis for requesting a stay that it is “to avoid unnecessary court time”. The email says nothing about an appropriate case. And in the absence of other factors, and in the absence of evidence as to those matters, this Court dealing with the costs of the litigation which has otherwise proceeded to judgment, cannot be said to be unnecessary.
The balance of convenience lies with the respondents insofar as they are entitled to the fruits of the outcome of the litigation and the presumption that the judgment, as handed down, is correct. Nothing in the evidence, or in the grounds of appeal as presently drafted, but to be amended, indicates otherwise.
The balance of convenience also lies against the applicant in that the determination of costs by this Court will ensure that all parties know the final outcome of the first instance litigation. If there is any appeal in relation to costs, that can presumably be dealt with as part of the appeal, rather than having to go back in the event that the existing appeal (to be amended) is unsuccessful and then there is a subsequent appeal with respect to costs which, as the Court indicated in argument, will be likely to see any appeal as to costs blow out to 2015 rather than being dealt with contemporaneously with the present appeal.
For all of the above reasons the Court declines to order a stay under r.29.04 of the FCC Rules
Transcript
The applicant seeks to peruse the transcript of the proceedings in the Registry. Rule 2.08(4) of the FCC Rules provides that r.2.32 of the FC Rules applies to the searching of records in a proceeding that is not a Family Law or Child Support Proceeding. Given that this is neither of those types of proceedings, r.2.32 of the FC Rules applies in this matter.
Rule 2.32 of the FC Rules reads as follows:
(1) A party may inspect any document in the proceeding except:
(a) a document for which a claim of privilege has been made:
(i) but not decided by the Court; or
(ii) that the Court has decided is privileged; or
(b) a document that the Court has ordered be confidential.
(2) A person who is not a party may inspect the following documents in a proceeding in the proper Registry:
(a) an originating application or cross-claim;
(b) a notice of address for service;
(c) a pleading or particulars of a pleading or similar document;
(d) a statement of agreed facts or an agreed statement of facts;
(e) an interlocutory application;
(f) a judgment or an order of the court;
(g) a notice of appeal or cross-appeal;
(h) a notice of discontinuance;
(i) a notice of change of lawyer;
(j) a notice of ceasing to act;
(k) proceedings to which Division 34.7 applies:
(i) an affidavit accompanying an application or amended application under section 61 of the Native Title Act 1993; or
(ii) an extract from the register of Native Title claims received by the court from the Native Title Registrar;
(l) reasons for judgment.
(3)… [Subrule 3 is not relevant for the present purposes.]
(4) A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.
(5) A person may be given a copy of a document, except a copy of the transcript, in the proceeding if the person:
(a) is entitled to inspect the document; and
(b) has paid the prescribed fee.
…
Note 2 If there is no order that a transcript is confidential a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.
It is significant that r.2.32 of the FC Rules does not provide for the ability to inspect the transcript, and expressly precludes parties from being given a copy of the transcript, and notes that the transcript can, on payment of the appropriate charge, be obtained from the Court’s transcript provider.
With respect to the transcript, that accords with the Federal Magistrates Court’s decision in O’Donoghue v Administrative Appeals Tribunal and Ors [2012] FMCA 964 (“O’Donoghue”) where, at para.19, the Federal Magistrates Court found as follows:
First, no party has a right at law, or otherwise, to be given a copy of the transcript of proceedings in this court. Second, the parties, if they wish, can order copies of transcript and pay for the transcript ordered.
Nothing said in Karsten v Federal Republic of Germany [2008] FCA 331 (“Karsten”) is inconsistent with what was said in O’Donoghue.
The transcript is not a “document in the proceeding” for the purposes of r.2.32(1) of the FC Rules. Documents in the proceedings are those of a type as set out in r.2.32(2) of the FC Rules which the Court has read out. The transcript is a “document” for the purposes of Part 1 of the Evidence Act 1995 (Cth), but it is a document which is a record of proceedings and not a “document in the proceedings.”
As the Court indicated during the course of argument, there is no copy of the transcript on the Court file. That is consistent with it not being a “document in the proceedings”.
The transcript is, as the FC Rules note, provided to the Court by a transcript provider and provided pursuant to a contract which obviously requires the payment of fees for the provision of transcript to non-contracting parties. The copyright in the transcript resides with the Commonwealth.
The applicant says that she is unable to afford the transcript if she were to order it, but says nothing as to why that is so. Indeed, there is nothing whatsoever in the evidence, apart from the merest of assertions that the applicant is impecunious, which goes to the applicant’s financial position at all.
In argument it was suggested that the Court might have regard to the fact that a Registrar of the Federal Court has apparently, a matter of which there is no evidence it should be added, allowed the appeal to be filed on financial hardship grounds but there is no evidence of what material was put before the Federal Court in that regard.
In this particular case, Ms Naroth’s affidavit does not descend to detail with respect to her financial position at all. There is no detail of her financial position. No indication of employment or not. No indication of any assets, whether they be cash at bank, investments, property or otherwise. There is an indication in her affidavit that she is a partner of S&R Naroth, for which an ABN is given, but again there is no descent to detail of the partnership income or assets.
The Court hardly need say, and has made apparent in the course of the argument, that it was wholly inappropriate for the applicant to have access to the version of the transcript which was provided for the Court for use in preparing the judgment and which was, of necessity, marked up for that purpose.
The Court has had regard to the judgment in Karsten. That was a case involving a self-represented litigant facing extradition who had evidently appeared at a directions hearing or hearings by way of video from wherever his place of detention then was. Significantly, the Federal Court refused access to the transcript in that case and did so, notwithstanding the fact that the applicant was self-represented, that he alleged that the video quality was poor, but did so, it must be said, on the basis that what was said to have transpired at the directions hearing was not presently relevant to the motion before the Court which involved a challenge, of some type, to an order made by a State Magistrate in respect of the extradition proceedings.
At para.62 of Karsten the Federal Court did say, that in an appropriate case, arrangements might be made to provide a litigant access to a transcript. The Federal Court indicated that it would do so, or may do so, in circumstances where a litigant is unable, financially, to obtain their own copy of a transcript or where it is necessary in the administration of justice that a copy be made available. The Court also said that the utility of making such arrangements needed to be identified otherwise it remained difficult to consider why such orders or arrangements should be made.
It is clear on the face of the judgment in Karsten that the general rule, not lightly be departed from, is that transcript is not provided to litigants other than through the normal process of their paying for that transcript upon order.
From the refusal it can be inferred that that case, which involved a self-represented litigant facing extradition, was not one whereby the provision of transcript was necessary in the interests of the administration of justice.
As the Court has indicated in this case, there is an assertion but no evidence that the applicant is financially impecunious. Parties who come to a court seeking an indulgence on the basis that they are financially impecunious, need to engage in a process of full and frank disclosure, of show and tell, not failure to show and tell, or hide and seek.
In this case, although it is said that something was put before the Federal Court on the appeal application, there is no evidence as to that and no means of testing it and no means of testing the applicant’s income or any interest she may have in the partnership income in the partnership which is adverted to in her affidavit.
It is not otherwise in the interests of the administration of justice that a transcript be provided. This is, with great respect to the parties, an ordinary commercial case involving a self-represented litigant (which is not an unusual fact in cases in any court nowadays) in respect of which the applicant has been unsuccessful.
The applicant has not put before the Court any real reasons why it is in the administration of justice that such an ordinary case involving ordinary litigants, both the applicant and the respondents, ought to result in the provision at expense to the Commonwealth taxpayer for the labour and materials involved in the production of a copy of the transcript so that the applicant can better prepare her appeal, it would seem, or at least better prepare herself with respect to the argument on costs in this matter.
In that regard, as the Court adverted to in the course of argument, the costs schedule in this Court is an events-based schedule and there is no great complexity with respect to it, other than perhaps in this case, some apportionment of costs for the degree to which the applicant was partially successful in her case. Again, that is not a matter of great complexity. It is a matter of submission and ultimately a matter of discretion for the Court under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth).
There was no adequate explanation of the utility of making any arrangements with respect to the provision of transcript against the background that the Court has indicated.
In those circumstances the reference to Karsten was of assistance to the Court in the disposition of this matter. It has not ultimately been of any assistance to the applicant with respect to her application to peruse the transcript.
In those circumstances there will be no order that the applicant be allowed to peruse the transcript in the Registry.
Extension of time for written submissions
With respect to the question of further time, the applicant seeks “adequate” time to prepare written submissions in response to the written submissions filed by the respondent and suggests in argument a period of some six weeks.
The basis for that extension is set out in her affidavit in that she is seeking to understand the respondent’s submissions on costs, and says it is a specialised area and that she needs more time to make submissions.
As the Court has already indicated, the question of costs is to be determined on the basis of sch.1, the costs schedule to the FCC Rules. It involves a determination of what events occurred and an addition or multiplication of certain sums. It involves no complexity and no particular specialisation in respect of the costs orders of this Court. It might involve some submissions as to the extent to which the Court might otherwise exercise its discretion in the event that it is minded to make cost orders and to what extent, if the ordinary rule that the successful party is entitled to its costs is followed, that is that they might be made proportional for the degree to which the applicant was successful in her application.
The Court notes that the application was made at a time when the applicant was already seemingly in default, although that seemingly was denied during the course of proceedings today, by an assertion that there was no necessity for her to file submissions under order 4(a) of the Court’s orders of 28 March 2013. In terms of the application for further time, the Court notes that there has been no acceptable reason put forward for an extension of time, or adequate time as the applicant puts it, to be given in circumstances where the calculation of the respondents’ costs, based entirely on sch.1, are, as the Court has already indicated, relatively straight forward.
There is simply nothing, or not too much, to understand when costs are to be determined on an events based schedule. And as the Court has already said the only complicating factor is, and it is only a small complicating factor, that the applicant was successful with respect to a small part of her case. In those circumstances, the Court does not consider that there is any evidence in the applicant’s submissions which warrants a further extension of time. The Court particularly bears in its mind that generous time, relative to a costs hearing, effectively in the order of four weeks, has already been allowed for the provision of costs submissions and response to those submissions to come in.
The Court also observes that the respondent has already filed submissions, and that there is a hearing, albeit a short hearing, reflecting the non-complex nature of the costs provisions in this Court, scheduled for 17 May 2013. For these reasons, the respondent would be prejudiced if the applicant were granted further time in which to file its responsive submissions.
In those circumstances, the Court does not propose to accede to the application to allow further time for costs submissions to be filed by the applicant in response for the purposes of order 4(b) of the orders of 28 March 2013.
Vacation of hearing
The applicant also seeks the vacation of the hearing on 17 May 2013. For the reasons already given in respect of the refusal to grant a stay there is no basis for the vacation of the short hearing on costs on 17 May 2013.
Order
It follows, therefore, that there will be an order dismissing the application in a case.
Leave to appeal
In the circumstances, the Court is of the view that there is no merit in the argument for application for leave to appeal the order just made. Therefore, the application for leave to appeal the Court’s order of 24 April 2013 is also refused.
Costs
In the circumstances there will be a further order that the applicant pay the respondents’ costs of the application in a case filed 18 April 2013 in the sum of $1617 plus a half day hearing fee of $936, for a total of $2553, payable within 7 days.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 7 May 2013
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