Ritson v PATS Consulting Pty Ltd (No.2)
[2012] FMCA 1019
•25 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RITSON v PATS CONSULTING PTY LTD (NO.2) | [2012] FMCA 1019 |
| PRACTICE & PROCEDURE – Costs – Application for costs of unsuccessful application for leave for a non-lawyer to appear for a corporation. |
| Federal Magistrates Court Rules, r.9.04 |
| Ritson v PATS Consulting Pty Ltd [2012] FMCA 837 |
| Applicant: | BRENDAN RITSON |
| Respondent: | PATS CONSULTING PTY LTD (ABN 55 140 733 446) |
| File Number: | SYG 1165 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mitchell Lawyers |
| Respondent: | No appearance |
ORDERS
The matter be adjourned for directions before me at 9.30 am on Wednesday 14 November 2012.
The respondent pay the costs of the applicant in connection with the application under r.9.04 of the Federal Magistrates Court Rules determined on 12 September 2012 and the costs thrown away by reason of the adjournments on 27 August 2012 and today in the sum of $2,216.50. Such costs to be paid within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1165 of 2012
| BRENDAN RITSON |
Applicant
And
| PATS CONSULTING PTY LTD (ABN 55 140 733 446) |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application for quantification of costs in relation to the respondent’s unsuccessful application for leave to carry on the proceeding otherwise than by a lawyer (see r.9.04 of the Federal Magistrates Court Rules and Ritson v PATS Consulting Pty Ltd [2012] FMCA 837) and the costs of the applicant thrown away by reason of the adjournment on 31 July 2012 when further time was sought by the respondent through Mr Ryan in order to file evidence in support of such application for leave. Such costs have not yet been quantified.
The application for leave was heard on 27 August 2012. In the orders made on that day it was noted that the applicant would provide a copy of a proposed schedule of costs incurred by reason of the adjournment on 31 July 2012; that the costs in that respect would be fixed by the court at a directions hearing on 5 October 2012 and that on the date the applicant also intended to seek the costs of the leave application.
In my judgment of 27 August 2012 I noted that because I had not granted leave to Mr Ryan to represent the respondent, I did not intend to determine the costs at that time but would postpone that issue until the next occasion the matter was before the court to ensure that the respondent had the opportunity before 5 October 2012 to obtain the necessary legal representation. I made orders for the respondent to file a notice of address for service, a response and a defence. No such documents were filed.
There was no appearance for the respondent on 5 October 2012. I again ordered that the respondent file a notice of address for service providing the name of the legal representative who was to act for it, and listed the matter before me at 9.30 am today, 25 October 2012, including for the purpose of fixing the costs incurred by the applicant by reason of the adjournments on 31 July 2012 and 5 October 2012 and the costs in relation to the leave application.
The applicant’s solicitor has provided the court with a copy of a letter to the respondent of 16 October 2012 enclosing a schedule of the costs which it was advised were intended to be sought today in relation to the leave application and also the costs of the adjournments on 27 August 2012 and 5 October 2012.
At the heel of the hunt, as it were, as has occurred on previous occasions, there has been last minute contact with the registry, including by a person who is apparently a sister or relative, or at least has the same family name as Mr Ryan (who previously sought leave to appear for PATS Consulting) seeking a delay in the proceedings on the basis that legal representation for the respondent was about to be obtained. It was not clear whether Ms Ryan, who described herself as a barrister, intended to act for PATS. The registry sought clarification in that respect. It appears that that was not the case.
My chambers were informed this morning through the registry that there had been some registry contact with a firm of Melbourne lawyers who indicated that they had instructions to act for the respondent. The court has now received a copy of a letter of today’s date from a Michael Smith, barrister and solicitor, indicating that he now has instructions to act on behalf of the respondent and will file a notice of address for service in due course. He claims to have some familiarity with the general dispute between the parties, as he acted for Mr Ryan in an intervention order application. However he also stated that he was given instructions to act yesterday and needed time to familiarise himself with the matters before the court. He sought that the matter be listed for further directions to enable him to arrange an agent to inspect the court file and to allow him to obtain more detailed instructions.
From at least 27 August 2012 or shortly thereafter when the respondent was notified in writing of the orders made on that date the respondent corporation was clearly on notice of the fact that it needed to have a solicitor acting, that a notice of address for service was to be filed by 10 September 2012 and that a response and a defence were to be filed. That did not occur. Nor was there any compliance with the subsequent order of 5 October 2012 that a notice of address for service be filed before 12 October 2012. There is still no notice of address for service giving details of the respondent’s lawyer.
In all the circumstances, bearing in mind that the prejudice to the applicant in this case caused by any delay can be remedied by a costs order, I am of the view that, on balance and notwithstanding considerable concern about what has occurred previously in this matter and the complete failure by the respondent to comply with the orders of the court, except in relation to the outstanding costs issues in relation to the leave application and the adjournment, it is in the interests of the administration of justice that there be a further adjournment of the substantive proceedings in order to allow the respondent to be legally represented.
An appropriate adjournment that will allow ample time for that to occur is until Wednesday 14 November. I note that I would view with concern any further application for an adjournment if it emerged that the respondent did not in fact have legal representation such as is foreshadowed in the letter from Michael Smith of 25 October 2012. These proceedings commenced on 29 May 2012. They have now been before the court for a considerable amount of time. As pointed out by the solicitor for the applicant, in addition to the costs that have been incurred, there has been considerable and unnecessary delay to this stage.
However it is not in the interests of the administration of justice that there be further delay in the determination of the outstanding costs application. The applicant maintains, as has been foreshadowed in the orders made on the past occasions as set out above, an application for costs of the unsuccessful application under r.9.04 of the Federal Magistrates Court Rules and also seeks the costs thrown away by reason of the adjournment today (as well as quantification of the costs of 31 July 2012 and 5 October 2012). While recognising that it is not the normal order, he also seeks that such costs should be payable within 14 days of today’s date.
Despite the adjournment of the substantive proceeding in the particular circumstances of this case, I am satisfied that it is appropriate to proceed with the determination of costs in relation to the leave application and the adjournments. The application for leave to represent the company was, as indicated, unsuccessful. Judgment in that respect was given on 27 August 2012.
It is appropriate that the applicant’s costs of the respondent’s unsuccessful r.9.04 application be paid by the respondent. There have been two attempts since that occasion to have the costs fixed at hearings which the respondent has not attended. The conduct of the respondent in failing to comply with any of the orders of the court to date is described above. The applicant has incurred additional costs today, thrown away by reason of the further adjournment.
The costs sought in relation to the leave application include the costs thrown away by reason of the adjournment sought on the date it was first listed for hearing by the respondent through Mr Ryan (who was given leave to appear for the limited purpose of making the leave application). The amount sought is not excessive. Indeed, the total amount of the costs sought, including all those matters, is in the sum of $2,216.50. This is less than the amount provided for in the Federal Magistrates Court Rules on a lump sum basis. It is appropriately so, being based on a calculation consistent with the provisions in the Federal Court Rules. The respondent is on notice of the fact that such costs are sought by the applicant. Having regard to the amount sought it is also appropriate that I fix the costs rather than make an order for taxation.
In addition, in the particular and unusual circumstances of this case as set out above, it is appropriate that there be an order that these costs be paid by a fixed date rather than that they not be payable until final resolution of the substantive proceedings. There has already been a considerable delay. In the normal course of events I would have expected that this matter would have been heard, or at least fixed for hearing, most likely at a date before the end of this year, had it been listed for hearing on the first return date of 10 July 2012. The delay is entirely attributable to the respondent.
I have had regard to all of the circumstances in reaching the view that it is appropriate that the applicant pay the respondent’s costs of the leave application and thrown away by reason of adjournments, that the costs be fixed today and also that an order be made, notwithstanding that they are interlocutory costs, that such costs be payable within a fixed period. The applicant sought payment within a period of seven days. In my view, allowing time for notification to the respondent of the orders made today and noting that we do not at the moment have a notice of address for service for Mr Smith, I consider that the period of 14 days is appropriate. Such period will expire shortly before the next date on which the matter is before the court.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 6 November 2012
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