Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd (No. 2)

[2012] FCA 730

FEDERAL COURT OF AUSTRALIA

Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No. 2)
[2012] FCA 730

Citation:	Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd (No. 2) [2012] FCA 730
Parties:	PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 v PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629, TONY GREGORY PURDON and RALPH T MARTIN
File number:	QUD 272 of 2009
Judge:	GREENWOOD J
Date of judgment:	3 July 2012
Catchwords:	PRACTICE AND PROCEDURE – consideration of the disposition of the costs of the principal proceeding
Date of hearing:	3 July 2012
Date of last submissions:	3 July 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Mr C Johnstone
Solicitor for the Applicant:	Bennett & Philp Lawyers
Counsel for the Third Respondent:	Third Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 272 of 2009

BETWEEN:

PLASTEC AUSTRALIA PTY LTD ACN 093 513 467
Applicant

AND:

PLUMBING SOLUTIONS AND SERVICES PTY LTD
ACN 128 873 629
First Respondent

TONY GREGORY PURDON
Second Respondent

RALPH T MARTIN
Third Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	3 JULY 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The third respondent pay the applicants’ costs of and incidental to the proceeding on an indemnity basis. 

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 272 of 2009

BETWEEN:

PLASTEC AUSTRALIA PTY LTD ACN 093 513 467
Applicant

AND:

PLUMBING SOLUTIONS AND SERVICES PTY LTD
ACN 128 873 629
First Respondent

TONY GREGORY PURDON
Second Respondent

RALPH T MARTIN
Third Respondent

JUDGE:	GREENWOOD J
DATE:	3 JULY 2012
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. In this preceding judgment was published on 18 May 2012 and on that date extensive reasons for judgment were also published in support of the orders which were made on that date, which were that judgment be entered for the applicant with costs subject to order 2.  Order 2 on that occasion was that the applicant is directed to file and serve upon the third respondent within 10 days, proposed minutes of order concerning the terms of the declaration and injunctions sought by the applicant in the proceeding.  As things transpired, draft minutes of order were prepared and exchanged which were the subject of some further exchanges resulting in final orders made on 29 May 2012.

2. Those orders have been entered. 

3. Order 2 of the court orders of that day is in these terms:

   The applicant have liberty to apply by Friday 15 June 2012 for orders:

   (a)that the applicant’s costs of and incidental to the proceedings be paid by Ralph Trevor Martin on an indemnity basis;

   (b)for payment by a non-party of its costs of and incidental to the proceedings on an indemnity or alternatively on a party/party basis.

4. Order 3 provided that in the event that no application was made pursuant to order 2(a), Ralph Trevor Martin pay the applicant’s costs of and incidental to the proceedings including reserved costs to be taxed unless otherwise agreed.

5. An application as contemplated by order 2 was filed by the applicant on 15 June 2012. By that application, the applicant seeks leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to take further steps against the third respondent, consisting of the steps involving the filing and prosecution of the application, that is to say, the interlocutory application filed on 15 June 2012.

6. That proposed order is made necessary because on 7 June 2012, Mr Martin presented a debtors petition under the provision of the Bankruptcy Act and in particular s 55(1) of that Act, with the result that Mr Martin’s bankruptcy commenced on 7 June 2012 with the appointment of the trustee Mr Alan Geoffrey Scott on 7 June 2012.

7. Mr Scott has written a letter to the Court in which he says that he does not wish to partake in this directions hearing on 3 July 2012, but in addition, he says that he will accept the judgment of the court in relation to the matters to be heard, the subject of the application.  That matter, on an inter‑parties basis at least, has become a question between Plastec and Mr Martin concerning the question of the disposition of the costs of the principal proceeding.

8. Mr Martin has appeared today and he has told the court that he does not wish to be heard further on this matter and accordingly, since Mr Martin does not wish to be heard and the trustee of his bankrupt estate does not wish to be heard on the merits, it seems appropriate to then consider the question of the exercise of the discretion under Federal Court of Australia Act 1976 in relation to the disposition of the costs of the proceeding.

9. Having regard to all of the findings made by the Court in Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510 concerning each aspect of the conduct of Mr Martin including, but not by way of limitation, Mr Martin’s conduct in failing to accurately disclose, in widely distributed material disparaging of the Plastec products in issue in the proceeding, his role in the development and composition of the report of the University of South Australia and his conduct in making in widely distributed material, representations without any foundation, in fact, to the effect that Plastec illegally colluded with SAI Global Limited and/or Standards Australia to obtain a certificate of compliance to which it was not entitled (representations later abandoned by him in the course of litigation made necessary by the making of the pleaded representations, but as to the matter of illegal collusion not made the subject of any unconditional undertakings not to further publish), I am satisfied that the applicant has been put to incurring substantial legal costs that it ought never to have incurred by reason of the unmeritorious conduct and in some respects, reckless conduct, of Mr Martin.

10. Accordingly, I order that Ralph Trevor Martin pay the costs of the applicant of and incidental to the proceeding on an indemnity basis. 

11. So far as the interlocutory application relates to claims for relief against third parties, I will make orders in terms of the draft minutes of order subject to the variation to order 8 as earlier discussed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       3 July 2012