Parke v Rubenstein

Case [2020] FCA 1466

FEDERAL COURT OF AUSTRALIA

Parke v Rubenstein [2020] FCA 1466

File number: SAD 12 of 2020
Judgment of: BESANKO J
Date of judgment: 14 October 2020
Catchwords: PRACTICE AND PROCEDURE — Interlocutory application for an order giving effect to the applicant’s acceptance of an offer made by the third respondent pursuant to rule 25.01 of the Federal Court Rules 2011 (Cth) — where the applicant had previously rejected the offer before then accepting it within the timeframe set out in the Notice of offer to compromise — whether rejection of an offer brings the offer to an end — common law rules relating to offer and acceptance do not apply to Pt 25 of the Rules — whether the Court should exercise its discretion under rule 25.10 to refuse to make an order — whether the Court should exercise the general power under rule 1.34 to dispense with compliance with the Rules
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Federal Court Rules 2011 (Cth) rr 1.34, 25.01, 25.02, 25.03, 25.05, 25.07, 25.08, 25.09, 25.10

Cases cited:

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364

Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153

Nationwide News Pty Ltd v Vass [2018] NSWCA 259; (2018) 98 NSWLR 672

Division: General Division
Registry: South Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 29
Date of hearing: 17 September 2020
Counsel for the Applicant: Mr P Heywood-Smith QC
Solicitor for the Applicant: Hamdan Lawyers
Counsel for the Third Respondent: Ms S Chrysanthou with Mr B Dean
Solicitor for the Third Respondent: Company Giles

ORDERS

SAD 12 of 2020
BETWEEN:

MELISSA PARKE

Applicant
AND:

COLIN RUBENSTEIN

First Respondent

DAVE SHARMA

Third Respondent

ORDER MADE BY:

BESANKO J

DATE OF ORDER:

14 OCTOBER 2020

THE COURT ORDERS THAT:

1.The parties be heard as to the precise terms of the order to be made under r 25.10 of the Federal Court Rules 2011 (Cth) having regard to the conclusions set out in the reasons of the Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BESANKO J:

INTRODUCTION

  1. This is an interlocutory application brought by an applicant in a proceeding for defamation in the Court. There were originally three respondents, two of whom are individuals (the first and third respondents) and the second was a media organisation. The applicant discontinued the proceeding against the second respondent on 3 April 2020. The interlocutory application concerns only the applicant and the third respondent. It is brought under r 25.10 which is in Pt 25 (“Offers to settle”) of the Federal Court Rules 2011 (Cth) (the Rules) and the order sought is an order giving effect to the applicant’s acceptance of the third respondent’s Notice of offer to compromise dated 15 July 2020 which offer was, on the applicant’s case, accepted by the applicant on 12 August 2020. The…

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Parke v Rubenstein [2020] FCA 1466
Case
[2020] FCA 1466
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Parke v Rubenstein involved an interlocutory application concerning the validity of an acceptance of an offer made by the third respondent in accordance with rule 25.01 of the Federal Court Rules 2011 (Cth). The applicant had initially rejected the offer but subsequently accepted it within the prescribed timeframe. The central legal issues were whether the rejection of the offer terminated it and whether the common law principles of offer and acceptance applied to Part 25 of the Rules. Additionally, the court had to consider whether it should exercise its discretion under rule 25.10 to refuse to make an order and whether it should invoke its general power under rule 1.34 to dispense with compliance with the Rules.

The court concluded that the common law rules on offer and acceptance did not apply to Part 25 of the Rules. It found that the applicant's acceptance of the offer was valid and effective under the Rules. The court rejected the third respondent's argument that the applicant had misrepresented the position by initially rejecting the offer and later accepting it. The court determined that the applicant was entitled to have her acceptance honoured under the Rules. Consequently, the court ruled that an order should be made giving effect to the applicant’s acceptance of the third respondent’s offer.

The court ordered that the parties be heard to determine the precise terms of the order to be made under rule 25.10 of the Federal Court Rules 2011 (Cth). The decision underscores the importance of adherence to the specific procedural rules governing offers of compromise in the Federal Court and highlights that common law principles do not override these statutory provisions.

Orders

Orders of the court

1. The parties be heard as to the precise terms of the order to be made under r 25.10 of the Federal Court Rules 2011 (Cth) having regard to the conclusions set out in the reasons of the Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons which follow, I have concluded that the applicant’s acceptance of the third respondent’s offer was valid and effective and an order should be made giving effect to it. THE FACTS The applicant relies on an affidavit affirmed by her solicitor, Ms Abby Hamdan. Ms Hamdan deposes to the basic facts of the matter. The third respondent relies on an affidavit affirmed by his solicitor, Ms Rebekah Ruth Giles. Ms Giles’ evidence is referred to below. I am not the docket judge in relation to this proceeding. The interlocutory application has been referred to me in order to avoid any issue arising as to the docket judge’s ability to hear the proceeding. The third respondent’s Notice of offer to compromise (the Offer) is dated 15 July 2020. The Offer is signed by the offeror’s solicitor as required by r 25.02. The Offer provides that it is an offer inclusive of costs (see r 25.03). Rule 25.05 provides that a party may make more than one offer, and that unless a notice provides otherwise, an offer is taken to be made without prejudice. In this case, the third respondent’s Offer is stated to be made without prejudice. Rule 25.05(3) provides that an offer may be limited in time for which it is open to be accepted, however, the time must not be less than 14 days after the offer is made. The third respondent’s Offer states the following:This offer of compromise is open to be accepted for 28 days after service of this offer of compromise. Rule 25.07 of the Rules is important. It provides as follows:25.07 Withdrawal of offerAn offer may be withdrawn within 14 days after it is made only if:(a) the Court, on an application by the offeror, gives leave; or(b) the offer is superseded by an offer in more favourable terms to the offeree. Rule 25.08 provides as follows:25.08 Acceptance of offer(1)An offer is open to be accepted within the time stated in the notice, which must not be less than 14 days after the offer has been made.(2)If no time for acceptance is stated in the notice, an offeree may accept the offer at any time before judgment is given.(3)An offeree may accept the offer by serving a notice of acceptance, in accordance with Form 46 on the offeror, at any time while the offer is open. Rule 25.09 deals with the circumstances in which an offeree who has accepted an offer for a sum of money may withdraw the acceptance. Rule 25.10 provides as follows:25.10 Failure to comply with offerIf, after acceptance of an offer by an offeree, an offeror fails to comply with the offer’s terms, the offeree may apply to the Court for an order:(a) giving effect to the accepted offer; or(b) staying or dismissing the proceeding if the applicant is in default; or(c) striking out the respondent’s defence if the respondent is in default; or(d) that a cross‑claim, not the subject of the offer, proceed. By letter dated 17 July 2020, Ms Hamdan wrote to Ms Giles advising her that she was instructed to reject the third respondent’s Offer. Ms Hamdan, on behalf of the applicant, made what she referred to as alternative offers as follows: (1) the third respondent pay the applicant a specified sum of money in full and final settlement; or (2) the third respondent pay the applicant a lesser sum of money (i.e., less than the first offer) in full and final settlement plus an apology and retraction in terms of an attached draft.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, there was nothing done on the applicant’s side which would justify departing from the effect of the Rules. The third respondent seemed to suggest at one point that the applicant had misrepresented the position by rejecting the Offer and then later accepting it. I cannot see that there was any misrepresentation by the applicant. She was entitled to do what she did under the Rules.CONCLUSION The applicant’s acceptance of the third respondent’s Offer was effective under the Rules and the applicant is entitled to an order under r 25.10. I will hear the parties as to the precise terms of the order.

Ratio Decidendi

Legal Principle Established

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