O'Shanassy v Ainsworth Game Technology

[2006] FCA 638

FEDERAL COURT OF AUSTRALIA

O’Shanassy v Ainsworth Game Technology [2006] FCA 638

LANA O’SHANASSY v AINSWORTH GAME TECHNOLOGY & ORS

NSD966 OF 2005

EMMETT J
12 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD966 OF 2005

BETWEEN:

LANA O'SHANASSY
APPLICANT

AND:

AINSWORTH GAME TECHNOLOGY LIMITED
FIRST RESPONDENT

ARISTROCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED
SECOND RESPONDENT

AUSTRALIAN HOTELS ASSOCIATION (NSW)
THIRD RESPONDENT

THE STATE OF NEW SOUTH WALES
FOURTH RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

12 MAY 2006

WHERE MADE:

SYDNEY

THE COURT:

1.        Extends the time for compliance with Order 4 of 16 December 2005 to 26 May 2006.

2.Directs the applicant to file and serve, no later than 22 May 2006, any further affidavits upon which she wishes to rely in support of the notice of motion of 2 May 2006.

3.Stands the notice of motion filed on 2 May 2006 over to 26 May 2006 at 9:30am for hearing.

4.Orders the applicant to pay all reasonable costs thrown away by the adjournment of the motion.

5.        Gives leave for the costs to be taxed forthwith.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD966 OF 2005

BETWEEN:

LANA O'SHANASSY
APPLICANT

AND:

AINSWORTH GAME TECHNOLOGY LIMITED
FIRST RESPONDENT

ARISTROCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED
SECOND RESPONDENT

AUSTRALIAN HOTELS ASSOCIATION (NSW)
THIRD RESPONDENT

THE STATE OF NEW SOUTH WALES
FOURTH RESPONDENT

JUDGE:

EMMETT J

DATE:

12 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. On 21 October 2005, I directed the applicant to file and serve any amended application by 27 October 2005 and that any affidavits to be relied on by the applicant be filed by 3 November 2005.  I also directed that, if there was any default by the applicant in complying with those orders, any respondent may file a notice of motion seeking summary dismissal of the proceeding, such motion to be returnable before me on 11 November 2005.  Otherwise, I directed that the matter be re-listed for further directions before me on 16 December 2005.

2. Pursuant to the first order, the applicant filed an amended application for preliminary discovery on 26 October 2005.  On 4 November 2005, pursuant to the orders that I made on 21 October 2005, the third respondent moved for an order either that the applicant not be permitted to rely on any further affidavits or that the amended application be dismissed.  That motion was returnable on 11 November 2005. On 7 November 2005, the second respondent filed a notice of motion returnable on 11 November 2005, seeking an order that the proceeding be dismissed pursuant to Order 35A rule 3(1)(a).  By consent, those motions were adjourned for hearing on 16 December 2005. 

3. Four further motions were then filed by the respondents.  On 11 November 2005, the first respondent filed a notice of motion for dismissal pursuant to Order 35A.  On 18 November 2005, the third respondent filed a notice of motion for an order that the applicant provide security for costs and for a stay until such security is provided.  On 12 December 2005, the second respondent also filed an application for security for costs and, on 13 December 2005, the fourth respondent filed a motion seeking security for costs. 

4. All four of those motions were returnable before me on 16 December 2005.  On that day, the motions for security were stood over for directions on 24 February 2006.  I ordered the applicant to pay all costs reasonably incurred by the respondents in respect of the hearing of the motions on that day and thrown away by that adjournment. I also granted leave to the respondents to have those costs assessed or taxed forthwith and ordered the applicant to pay the amount of the costs forthwith upon assessment or taxation.  I directed that the proceeding be stayed until the costs had been paid in full and that the proceeding and all current motions be listed for directions on 24 February 2006. 

5. On 24 February 2006, the proceedings were adjourned to 31 March 2006.  On that day, I directed that the proceeding and any outstanding motions be listed for further directions today. I ordered that the respective times for payment of the costs ordered on 16 December 2005 be extended to 21 days of the date of service of each respondent’s certificate of taxation.  I gave the applicant leave to apply to the Court prior to the expiration of the time fixed for payment, on seven days notice to the respondents, for an extension of the time for payment of the costs.  I also ordered that the proceedings stand dismissed as against any respondent in respect of whose costs the applicant failed to comply with the order for payment.

6. On 2 May 2006, the applicant filed a motion seeking an order that the time for payment of costs in the certificates of taxation be extended by 12 weeks in relation to each certificate.  No affidavits were filed in support of the motion.  The motion was stamped for directions only. 

7. When the motion was called on for hearing today, all respondents indicated that they were ready to deal with the motion and opposed any adjournment of its hearing.  The applicant, on the other hand, indicated through her solicitor, Mr Knaggs, that she was not ready to proceed with the hearing of the motion.  The applicant’s solicitor indicated that he had understood from the stamp ‘FOR DIRECTIONS ONLY’ on the Notice of Motion that the matter would not be required to proceed today.

8. Mr Knaggs pointed out that the orders of 31 March 2006 did not state expressly that affidavits in support of the motion for an extension should be also filed at the same time as the motion.  I would have thought, as a matter of common sense, that a direction that any application to extend the time for payment of costs be filed by a particular time, with at least seven days notice in writing for the respondents, would require that the evidence in support of the application be filed at the same time.  Mr Knaggs accepts that the costs thrown away by an adjournment must be borne by the applicant. 

9. The only evidence relied upon in support of the motion is an affidavit of the applicant sworn on 11 May 2006, in which she says that she has no ready funds to pay the costs that have been ordered to be paid by her.  She said in that affidavit that she has used her best endeavours to raise the necessary funds so as to pay the taxed costs but that those endeavours have been unsuccessful to date.  She has not been able to raise any assistance to date from persons who have an interest in the proceeding, whom she represents.  She says that, if using her best endeavours, which she undertakes to do, she can make the payments earlier than the time for which extension sought in the motion she would do so.  However, the affidavit affords no comfort whatsoever that there might be any prospect that the applicant will ever be able to raise any money and would ever be able to meet any further order for costs.

10. Mr Knaggs proffered an undertaking to the Court that, if the costs thrown away by the adjournment as assessed or taxed are not paid within six weeks by the applicant, he personally would accept responsibility for their payment.  Mr Knaggs also gave evidence as to a conversation that he and the applicant had had with a Father Usher of the Roman Catholic Church on 10 March 2006, concerning the prospects of the Church providing funds for this proceeding.  Mr Knaggs gave evidence that the sum of $10,000 was mentioned as a figure which the Church would commit to this proceeding.  Mr Knaggs was unable to say that Father Usher was aware of the state of the proceeding or the nature of the orders for costs that had already been made.

11. With some considerable reluctance, I am disposed to accede to the application for a two week adjournment on the basis that there may have been some misunderstanding on Mr Knaggs’ part as to the evidence that was required in support of the motion.  For that reason, and upon accepting his undertaking as I have indicated, I would be prepared to extend the time for payment of the costs referred to in the certificates of taxation that have now been served, up to 26 May 2006, and I will stand over the hearing of the motion until that time. 

12. I consider that the applicant should file and serve, no later than 22 May 2006, any further affidavits upon which she intends to rely in support of her motion.  I have indicated that unless that affidavit contains some cogent evidence that there is a real prospect of the applicant being in a position to meet the orders for costs that have been made within a reasonably short period, then there is no prospect that the orders sought in the motion would be made.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            26 May 2006

Solicitor for the Applicant:	Mr D. Knaggs
Solicitor for the First Respondent:	Mallesons Stephen Jacques
Solicitor for the Second Respondent:	Allens Arthur Robinson
Solicitor for the Third Respondent:	Baker & McKenzie
Counsel for the Fourth Respondent:	Mr P. Singleton
Solicitor for the Fourth Respondent:	NSW Crown Solicitor’s Office
Date of Hearing:	12 May 2006
Date of Judgment:	12 May 2006