The Barclay MIS Group of Companies Pty Ltd (ACN 056 321 272) v Australian Securities and Investments Commission

[2003] FCA 135

FEDERAL COURT OF AUSTRALIA

The Barclay MIS Group of Companies Pty Ltd (ACN 056 321 272) v Australian Securities & Investments Commission [2003] FCA 135

THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272), BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035), BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613), BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276), BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211), BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275), BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585), BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614), BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692) v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY AND AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY AND THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272), BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035), BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613), BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276), BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211), BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275), BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585), BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614), BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692)

Q 59 OF 2002

DOWSETT J
4 FEBRUARY 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 59 OF 2002

BETWEEN:

THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272)
BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035)
BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613)
BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276)
BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211)
BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275)
BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585)
BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614)
BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692)
APPLICANTS

AND:

AND:

AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
FIRST RESPONDENT

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
SECOND RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
FIRST CROSS-CLAIMANT

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
SECOND CROSS-CLAIMANT

THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272)
BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035)
BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613)
BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276)
BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211)
BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275)
BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585)
BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614)
BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692)
CROSS-RESPONDENTS

JUDGE:

DOWSETT J

DATE OF ORDER:

4 FEBRUARY 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The cross-respondents pay two-thirds of the first cross-applicant’s taxed costs of these proceedings.

2.The cross-respondents pay half of the second cross-applicant’s taxed costs of these proceedings

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 59 OF 2002

BETWEEN:

THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272)
BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035)
BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613)
BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276)
BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211)
BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275)
BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585)
BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614)
BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692)
APPLICANTS

AND:

AND:

AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
FIRST RESPONDENT

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
SECOND RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
FIRST CROSS-CLAIMANT

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
SECOND CROSS-CLAIMANT

THE BARCLAY MIS GROUP OF COMPANIES PTY LTD (ACN 056 321 272)
BARCLAY MIS LANDLORD PROTECTION PLAN (VIC) PTY LTD (ACN 077 964 035)
BARCLAY MIS LANDLORD PROTECTION PLAN (NSW) PTY LTD (ACN 076 958 613)
BARCLAY MIS LANDLORD PROTECTION PLAN (TAS) PTY LTD (ACN 080 116 276)
BARCLAY MIS LANDLORD PROTECTION PLAN (QLD) PTY LTD (ACN 074 152 211)
BARCLAY MIS LANDLORD PROTECTION PLAN (SA) PTY LTD (ACN 080 999 275)
BARCLAY MIS LANDLORD PROTECTION PLAN (NT) PTY LTD (ACN 089 485 585)
BARCLAY MIS LANDLORD PROTECTION PLAN (WA) PTY LTD (ACN 082 879 614)
BARCLAY MIS LANDLORD PROTECTION PLAN (ACT) PTY LTD (ACN 096 963 692)
CROSS-RESPONDENTS

JUDGE:	DOWSETT J
DATE:	4 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Late last year, I gave judgment in this matter.  Application is now made on behalf of the cross-applicants for orders for costs. 

   FIRST CROSS-APPLICANT’S CLAIMS

2. The proceedings concerned six different proposed “plans”, four of which were being marketed by the cross-respondents and two which they proposed to market.  In the end, I held that one of the plans being marketed was not affected by the relevant legislation, but that the other five were, or would be so affected.  On the surface, then, the first cross-applicant has been substantially, but not entirely successful.  In seeking to restrain marketing by the cross‑respondents of their plans, the first cross-applicant relied upon various statutory provisions.  Some of its arguments succeeded and some failed.  It is said, in effect, that the relevant issues and considerations were common to all six plans, and that any order for costs in favour of the first cross-applicant should not be reduced to reflect the extent to which it was unsuccessful.  On the other hand, the cross-respondents submit that as they were successful as to one of the plans, there should be no order as to costs against them.

3. Clearly, the proceedings commenced by the first cross-applicant were justified in that conduct contrary to law was occurring or was contemplated.  It was obviously necessary that the various statutory provisions be vindicated by establishing as much and, to the extent necessary, obtaining orders which would prevent infringement in the future.  It seems to me, therefore, that it would be less than appropriate if the first cross-applicant were denied all of its costs.  On the other hand, I am satisfied that the proceedings were not insignificantly extended by a continued insistence upon the alleged illegality of the plan which I have held to be valid and by the unsuccessful arguments to which I have referred.  They concerned the “selling insurance” point and the “misleading or deceptive conduct” point.  In the circumstances, I consider that the most appropriate order as to costs will be that the cross‑respondents pay two-thirds of the first cross-applicant’s taxed costs of these proceedings. 

   SECOND CROSS-APPLICANT’S CLAIMS

4. The second cross-applicant was also partially successful.  Three of the plans were held to be contrary to the relevant legislation and three were not.  In those circumstances, and for reasons broadly similar to those which I have given in connection with the first cross-applicant’s claim, I will order that the cross-respondents pay half of the second cross-applicant’s taxed costs of these proceedings. 

5. I wish to make some further comments.  In my view, the costs of these proceedings have been unnecessarily increased by the fact that the first and second cross-applicants have chosen to be separately represented.  I do not know whether the question of joint representation was considered, or why any such consideration did not lead to joint representation.  I say only that in a case such as this where, as far as I can see, there could be no question of conflict between the cross-applicants in the prosecution of the proceedings, serious consideration should have been given to the possibility of joint representation.  Although both cross-applicants were necessary parties to the proceedings, it did not follow that they should have been separately represented.  The result in this case is that, because of the way in which Parliament has chosen to structure the legislation and the enforcement regime, the cross-respondents have, in my view unnecessarily and unfairly, been exposed to substantially increased costs.  In circumstances such as this, which do not arise frequently, the regulating authorities should address the possibility of joint representation.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            6 March 2003

Counsel for the Applicants:	Mr R G Bain QC
Solicitor for the Applicants:	Barclay Beirne Lawyers
Counsel for the First Respondent:	Mr J McKenna SC
Solicitor for the First Respondent:	Australian Securities and Investments Commission
Counsel for the Second Respondent:	Mr M Drysdale
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	4 February 2003
Date of Judgment:	4 February 2003