Sydney Discus World Aquariums Pty Ltd v Botany Way Scapes Pty Ltd (No 2)
[2021] FCCA 2011
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sydney Discus World Aquariums Pty Ltd v Botany Way Scapes Pty Ltd (No 2) [2021] FCCA 2011
File number(s): SYG 944 of 2020 Judgment of: JUDGE BAIRD Date of judgment: 18 August 2021 Catchwords: INTELLECTUAL PROPERTY - PRACTICE AND PROCEDURE – notice of discontinuance filed by applicant – costs awarded on party/party basis – application in a case setting aside costs order made in absence of applicant – applicant withdrew application at hearing – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth), rules 13.02, 16.05, Sch 1 Part 1 Cases cited: Black v Mills (No 2) [2015] FCCA 1973
Haider v Minister for Immigration & Anor [2020] FCCA 1113
Heywood v Sharpe [2014] FCCA 2999
Sydney Discus World Aquariums Pty Ltd v Botany Way Scapes Pty Ltd [2021] FCCA 1188
Number of paragraphs: 32 Date of last submission/s: 18 August 2021 Date of hearing: 18 August 2021 Place: Sydney Solicitor for the First Applicant: Ms Gunasena, company secretary, with leave of the Court Counsel for the First and Second Respondents: Mr G Tsang Solicitor for the First and Second Respondents: Scott Legal ORDERS
SYG 944 of 2020 BETWEEN: SYDNEY DISCUS WORLD AQUARIUMS PTY LTD
Applicant
AND: BOTANY WAY SCAPES PTY LTD
First Respondent
SAM HARLEN
Second Respondent
ORDER MADE BY:
JUDGE BAIRD
DATE OF ORDER:
18 AUGUST 2021
THE COURT:
1.GRANTS LEAVE pursuant to r 9.04 of the Federal Circuit Court Rules 2001 (Cth), to Ms Gunasena, company secretary, to represent the applicant, Sydney Discus World Aquariums Pty Ltd, today.
2.GRANTS LEAVE to Mr Tsang, counsel for the respondents to cross-examine Ms Gunasena on her affidavit made 28 June 2021.
3.ORDERS the applicant’s application in a case dated 28 June 2021 is dismissed.
4.ORDERS the applicant pay the respondents’ costs of and incidental to the application fixed in the sum of $3,547 (that sum being calculated according to the events based scale in Part 1 of Schedule 1 of the Rules (items 3, 12, and 13(b)).
5.NOTES the applicant moved on the application and read the affidavit, and that upon respondents’ counsel having the Court’s leave to cross-examine Ms Gunasena, Ms Gunasena sought and obtained a short break, and that upon her return to the Court room, Ms Gunasena informed the Court the applicant withdrew, and did not proceed with the application, and Ms Gunasena acknowledged that the Court proposed to make the order in paragraph 3.
REASONS FOR JUDGMENT
(ex tempore, revised from transcript)
JUDGE BAIRD
Introduction
By application in a case, dated 28 June 2021 and filed 29 June 2021, the applicant, Sydney Discus World Aquariums Pty Limited, relevantly seeks orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) setting aside the orders of the Court made 26 May 2021 (Costs Orders). Those orders, made pursuant to rule 13.02(1) of the Rules, were that the applicant pay the respondents’ costs further to the discontinuance by the applicant of the whole of its claim, further to the hearing and determination of the application in a case filed 5 March 2021 by the respondents, Botany Way Scapes Pty Limited and Mr Samuel Perry Harlen.
The hearing
The applicant’s application was initially listed before me for hearing on 13 August 2021, and then further to communications by the parties with Chambers, and at all their requests was set down for hearing today.
By the time the application came before me for hearing today, 18 August 2021, the applicant’s then‑solicitor, Mr Mark Smith, with the firm Brander Smith McKnight, had filed a notice of intention to withdraw as lawyer, dated 5 August 2021; and on 13 August 2021, a notice of withdrawal as lawyer. Notwithstanding the withdrawal as lawyer, as a courtesy to the Court, Mr Onishi, solicitor with Brander Smith Knight, appeared at the commencement of the hearing today to assist the Court.
The hearing has been conducted by video‑conference, using Ms Teams, further to ongoing NSW COVID‑19 restrictions. Ms Supun Gunasena, company secretary of the applicant, sought the leave of the Court to represent the applicant company at the hearing. The respondents’ counsel, Mr Gilbert Tsang, did not oppose such leave being granted. Pursuant to r 9.04 of the Rules, I granted Ms Gunasena leave.
Ms Gunasena moved on the application, and read her affidavit, affirmed 28 June 2021. Mr Tsang made no objection to the affidavit but sought leave to cross‑examine Ms Gunasena, having regard to the explanations made by Ms Gunasena in her affidavit. I granted Mr Tsang leave to cross-examine Ms Gunasena. The applicant also sought to rely on three pages of submissions in draft, previously sent to Chambers. Those submissions had not been served on the respondents, and I requested that Ms Gunasena send the submissions to the respondents. Ms Gunasena sought a short period of time in which to discuss the matter with Mr Perera, a principal of the applicant. I granted her that time. I arranged for the draft submissions to be sent by my Associate to the respondents, to Mr Onishi, and also a further copy to Ms Gunasena at [email protected].
On returning into the digital Courtroom, Ms Gunasena informed the Court that the applicant would withdraw its application today. After some discussion, Ms Gunasena acknowledged that the withdrawal of the application would have the consequence that the application would be dismissed. Ms Gunasena explained that her reasons for withdrawing were that she is not a qualified barrister, and that she appreciated that Mr Tsang was an experienced barrister. She said that she had sought to obtain other solicitors, and had approached some 10 firms, but was unable to obtain representation. She did not tender any documentary evidence to support her assertions.
Given that Ms Gunasena for the applicant has elected to withdraw, the application should be dismissed, and I will make orders to that effect. I set out the following reasons for completeness.
Evidence and submissions
Mr Tsang informed the Court that the respondents read and relied on:
(a)affidavit of Ms Leanne Janine Scott, sworn 3 August 2021, together with exhibit LJS‑5 which comprised a copy of the notice of withdrawal as lawyer received by the respondents’ lawyers from the applicant’s previous lawyers, Gilbert + Tobin, on 22 January 2021;
(b)chains of emails between the applicant, Ms Scott, and the Associate to Judge Baird;
(c)an extract of an email between the applicant and a third party;
(d)Ms Scott’s emails to the applicant, and the Associate to Judge Baird, dated 25 May 2021, serving Ms Scott’s fourth affidavit and exhibit LJS‑4; and
(e)affidavit of Ms Scott, sworn 25 May 2021, together with exhibit LJS‑4 (fourth Scott affidavit).
The fourth Scott affidavit was read at the hearing and referred to in the judgment I delivered in Sydney Discus World Aquariums Pty Limited v Botany Way Scapes Pty Limited [2021] FCCA 1188 (Sydney Discus No 1).
I note from Gilbert + Tobin’s notice of withdrawal as lawyer, and attached notice of intention to withdraw as lawyer for the applicant that the telephone number and email addresses notified as the applicant’s address for service until they appointed another lawyer was, a mobile telephone number ending in the digits 9-6-1 (Mobile Number), and the email address [email protected] (Email Address).
Before today’s hearing, Mr Tsang had forwarded to Chambers, and to the applicant at the applicant’s Email Address, the respondents’ outline of submissions. The respondents rely on that outline of submissions.
In the course of preparation for this hearing today I have read each of the above mentioned documents, namely, Ms Gunasena’s affidavit, two affidavits of Ms Scott, the applicant’s proposed submissions (noting that part of the submission is in highlight, and that the document is stamped draft), and the respondents’ outline of submissions.
Whilst, the application is not being pressed, I consider it is relevant, for the administration of justice, the Court’s control of its process, and efficient case management, to put on the record that the respondents contended that the application should be dismissed, and to ensure that the application is substantively dealt with.
Relevant legislative provisions
I have had the benefit of, and accept the respondents’ submissions. The following is taken from those submissions.
The issues raised by the application are:
(a)whether the Court should exercise its discretion pursuant to r 16.05(2) of the Rules to set aside the Costs Order;
(b)if not, whether the applicant is entitled to an order pursuant to r 13.02 for the costs of the respondents’ cross‑claim; and
(c)whether to award costs of the application, and if so on what basis.
The Costs Order was entered on 27 May 2021: it was authenticated by the Registrar signing the order and affixing to it the Court’s seal pursuant to r 16.08 of the Rules: Heywood v Sharpe [2014] FCCA 2999 at [17].
That being so, any order seeking to set aside or vary the Costs Order is governed by r 16.05(a) of the Rules, of which the only applicable provisions are r 16.05(2)(a) and, potentially, r 16.05(2)(c), which state:
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a)it was made in the absence of a party; or
…
(c)it is interlocutory
The principles governing the Court’s exercise of the discretionary power under r 16.05(2)(a) were recently summarised by this Court in Haider v Minister for Immigration & Anor [2020] FCCA 1113 at [22]:
[22]The Court’s power to reinstate is provided in r 16.05(2)(a) of the Rules where an order has been made in the absence of a party. The relevant principles for reinstatement have been summarised by Emmett J in this Court in Sikari v Minister for Immigration & Anor (No.2) [2019] FCCA 1341 at [9]. The Court has a broad discretion which in general requires consideration of three factors, and the determination whether on balance they tend for or against reinstatement. These factors are:
(a)whether there is a reasonable excuse for the party’s absence at the hearing when the proceedings were struck out;
(b)whether there is any prejudice, and the existence and nature of any prejudice, to the other party from the reinstatement.
If reinstatement were granted, the extent to which this may be addressed by adjournment, order for costs of other relief. This factor also includes consideration of the impact of reinstatement on the efficient allocation and use of scarce Court resources, noting that the mere absence of prejudice is not sufficient to grant relief; and
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
Although these principles refer to the dismissal of an application following an applicant’s failure to appear at a hearing, the same principles apply where an order is made against a party who does not appear at the hearing: Black v Mills (No 2) [2015] FCCA 1973 at [3].
CONSIDERATION AND DETERMINATION
What the evidence before me discloses is the following:
(a)when legally represented, the applicant consistently used the Email Address to communicate directly with both the Court and the respondents’ solicitor, Ms Scott;
(b)the Email Address is one that the applicant uses in the normal course of its business. Consistent with that, Ms Gunasena described it as “the company’s email inbox”. In addition, the applicant appears to also use mobile message applications such as Whatsapp for the purposes of conducting business;
(c)the applicant has been on notice since 22 December 2020 that, upon Gilbert + Tobin’s withdrawal as its lawyer, other parties and the Court could use the Email Address and also the Mobile Number [ending in 9‑6‑1] as the applicant’s contact address;
(d)after Gilbert + Tobin’s withdrawal from the proceedings on 22 January 2021, the applicant used the Email Address to send several emails to the Court, including on 15 February 2021 for the purposes of resisting a proposed extension of time for the respondents to file their costs application;
(e)after the respondents filed the costs application on 5 March 2021, its solicitor: (i) sent seven emails to the Email Address on 1, 6 and 20 April and also on 19, 20, 24 and 25 May 2021 in relation to the costs application; (ii) left voice messages at the voicemail of the Mobile Number on 20 and 21 May 2021; and (iii) sent SMS and Whatsapp messages to the Mobile Number on 21 May 2021, all of which went unanswered.
Mr Tsang in the respondents’ written submissions has made submissions in answer to Ms Gunasena’s explanation that she first became aware of the costs hearing and the respondents filing of its costs application on 30 May 2021. As the applicant has withdrawn the application today, the matters which the respondents sought to place before me in respect of those assertions are noted only as submission.
However, given the evidence that is before me, on balance, as I was on the hearing of the respondents’ costs application, I was satisfied, and I consider the Court was correct to be satisfied, that the applicant had been made aware of the date, time, and place of the hearing on 26 May 2021 (Costs application), as well as the evidence and respondents’ submissions in support. I am satisfied that Ms Gunasena’s explanation of why the applicant failed to appear cannot be accepted.
Mr Tsang in his written submissions has submitted that there is substantial prejudice in setting aside the Costs Order. I accept that setting aside the Costs Order, whether on this application, or on any further attempt by the applicant to re‑litigate, would cause the issues in the costs application to be re-litigated. Applying the principles in Haider, that is a matter that would be highly undesirable for both the respondents and the Court. Further, it would involve the applicant and its principals in further expense and emotional burden. Setting aside the Costs Order would condemn the respondents to further financial expense, and the consequent burden of having this dispute, which has been seemingly finalised, resurrected and extended. I have no confidence that the applicant would not again both appear, and then seek to withdraw.
I consider that there are no reasonably arguable prospects of success should the application have proceeded. Both of the contentions that appear to be raised in Ms Gunasena’s affidavit (which I next set out) are not new, and both were the subject of deliberation by the Court in Sydney Discus No 1 based on evidence read in the course of the hearing and determination of the costs application. Ms Gunasena’s contentions are:
(a)that the applicant’s decision to discontinue the proceeding was made for commercial reasons, and not for want of any lack of confidence in the merits of its claim; and
(b)that some unspecified alternative costs order ought to have been made in light of the respondents’ cross‑claim not being pursued.
First, as to the contention that the applicant’s decision to discontinue the proceeding was made for commercial reasons and not for want of any lack of confidence in the merits of its claim is a matter that was specifically addressed, and found in the applicant’s favour: see Sydney Discus No 1 at [33].
Secondly, as to the contention that some unspecified alternative costs order ought to have been made in the light of the respondents’ cross‑claim not being pursued, the nature of respondents’ cross‑claim was also the subject of the Court’s attention, see the procedural history at [8] to [22] of Sydney Discus No 1, and the view I reached that the respondents’ cross‑claim was in substance a defensive claim, see at [37]. In these circumstances, I consider that paragraph [17] of Ms Gunasena’s affidavit, is simply a bare assertion that the Court should reconsider its determination.
The overriding principle in the present case is the interest in the administration of justice. In the particular circumstances of this case, I am not satisfied that there is any material change in the circumstances, or that new material has been discovered which could not reasonably have been put before the Court on the previous occasion. It is thus appropriate that the applicant has decided not to proceed with the application today and has withdrawn it, and Ms Gunasena has indicated to the Court her acceptance that what follows is the application will be dismissed.
Application, paragraph [2] – re costs of cross‑claim
As to paragraph [2] of the application, namely, in the alternative that, pursuant to r 13.02 of the Rules, the costs of the cross‑claim should be separately ordered, and the Court vary the existing order. The difficulty with this contention is that the Costs Order I made, on 26 May 2021 necessarily included a determination by the Court as to which party was liable to pay the other’s costs in respect of the cross‑claim. Order 2(a) of the Costs Order was for ‘costs of the proceeding up to and including 21 February 2021’, which I accept necessarily included the respondents’ costs of the cross‑claim and which the Court, as I said above, has accepted was a defensive claim. Thus, what is sought by paragraph 2 of the application is in substance a variation of the Costs Order the Court has made previously. Such an order could only be made pursuant to r 16.05(2) of the Rules, which I have already addressed.
Accordingly, I consider it is appropriate, on the application being dismissed and further to Ms Gunasena’s representation to the Court that the applicant wished to withdraw, that the respondents should be given the costs of the hearing and determination of the application today.
CONCLUSION
It follows the application is dismissed. For the above reasons the respondents should have their costs of today and costs incidental to the application.
I accept that the ordinary event-based scale contained in Schedule 1 Part 1of the Rules applies. The order, and the amount that should be ordered is that the applicant pay the respondents costs, fixed in the sum $3,547 (that sum being the sum of items 3, 12, and 13(b), as an interim or summary hearing, as a half day hearing with advocacy loading).
I will so order.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 3 September 2021
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