Toogood v Mission Fantastic Pty Ltd trading as Ray White Mission Beach

[2011] FCA 650

FEDERAL COURT OF AUSTRALIA

Toogood v Mission Fantastic Pty Ltd trading as Ray White Mission Beach [2011] FCA 650

Citation:		Toogood v Mission Fantastic Pty Ltd trading as Ray White Mission Beach [2011] FCA 650
Parties:		STEVEN PAUL TOOGOOD v MISSION FANTASTIC PTY LTD ACN 109 264 655 TRADING AS RAY WHITE MISSION BEACH, RICHARD JON ROSS WILLIAMS and LORRAINE MARY WILLIAMS
File number:		QUD 83 of 2008
Judge:		COLLIER J
Date of judgment:		8 June 2011
Catchwords:		PRACTICE AND PROCEDURE – failure or refusal of applicant to primary proceedings to file notice of discontinuance – primary proceedings settled by mediation in 2008 – deed of settlement recorded terms of binding full and final settlement of proceedings – whether application in the primary proceedings should be dismissed as abuse of process – whether application in the primary proceedings should be dismissed as having no reasonable prospect of success – costs
Legislation:		Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A(2) Trade Practices Act 1974 (Cth) Workplace Relations Act 1996 (Cth) Federal Court Rules O 20 r 5, O 22 r 2, O 35 r 1
Cases cited:		Corbett v Bolesworth [2009] NZHC 1208 cited Re Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 cited Thompson v Macedon Shire Ranges Council [1999] VSC 338 cited
Date of hearing:	8 June 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First, Second and Third Respondents:	Ms SA Angove of MacDonnells Law

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 83 of 2008

BETWEEN:

STEVEN PAUL TOOGOOD
Applicant

AND:

MISSION FANTASTIC PTY LTD ACN 109 264 655 TRADING AS RAY WHITE MISSION BEACH
First Respondent

RICHARD JON ROSS WILLIAMS
Second Respondent

LORRAINE MARY WILLIAMS
Third Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	8 JUNE 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS BY CONSENT THAT:

The application in QUD 83 of 2008 be dismissed with no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 83 of 2008

BETWEEN:

STEVEN PAUL TOOGOOD
Applicant

AND:

MISSION FANTASTIC PTY LTD ACN 109 264 655 TRADING AS RAY WHITE MISSION BEACH
First Respondent

RICHARD JON ROSS WILLIAMS
Second Respondent

LORRAINE MARY WILLIAMS
Third Respondent

JUDGE:	COLLIER J
DATE:	8 JUNE 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The respondents to the primary proceedings in this matter have filed a notice of motion seeking the following orders:

   1.That Proceedings No QUD 083 of 2008 be discontinued.

   2.That the Respondent pay the cost of this Application.

   3.Such further or other Order that the Court deems fit.

2. The reference to “the Respondent” in the notice of motion is a reference to Mr Toogood, the applicant to the primary proceedings. I will continue to refer to the parties by their denominations in the primary proceedings.

3. In summary, the reason the notice of motion has come before the Court is that, although it appears the primary proceedings between the parties settled in mediation some time ago, no notice of discontinuance of the proceedings has been filed in accordance with O 22 r 2 of the Federal Court Rules.

   Background

4. The background facts to this notice of motion are set out in a joint affidavit of the first respondent (Mr Richard Williams) and the second respondent (Ms Lorraine Williams) who depose that they are the directors of the first respondent and have authority to bind the first respondent.

5. In summary:

   ·Mr Toogood was an employee of the first applicant from 22 May 2006 until 21 February 2007.

   ·On or about 24 April 2008 Mr Toogood filed an application and statement of claim against the respondents claiming, inter alia, breaches of an industrial award, the Workplace Relations Act 1996 (Cth), the Corporations Act 2001 (Cth) and the Trade Practices Act 1974 (Cth).

   ·On or about 31 July 2008 the applicant and the respondents executed a deed of discharge and release in which the applicant’s claims were settled in full in exchange for payment by the respondents of a sum of money within thirty days of execution of the deed. The deed also contained usual covenants as to mutual release, bar to future action, no derogatory comments or admission of liability, and confidentiality. In particular, clauses 9 and 9(A) of the deed provided:

   Giving Effect

   9. Each party shall do all acts and things necessary to give effect to this Discharge and Release.

   Notice of Discontinuance

   9(A) The parties shall take all necessary steps to discontinue Federal Court Proceedings No QUD-083/2008.

   ·The respondents depose that they have performed in full all their obligations under the deed.

   ·On or about 1 September 2008 after the respondents had paid the total sum in settlement to Mr Toogood, the solicitors of the respondents, MacDonnells Law, caused correspondence to be sent to Mr Toogood in accordance with clauses 9 and 9(A) by enclosing a Form 27 – Notice of Discontinuance for execution by Mr Toogood. MacDonnells Law requested Mr Toogood to file the notice of discontinuance with the Court without further delay.

   ·It appears that MacDonnells Law sent an account to Mr Toogood on or around 23 October 2008 in respect of photocopying costs of the firm. On 14 September 2009 Mr Toogood emailed MacDonnells Law, stating that the respondents had agreed to pay for all photocopying costs.

   ·On 15 September 2009 MacDonnells Law caused correspondence to be sent to Mr Toogood advising that:

   ohis photocopying costs were written off on 7 November 2008 as a cost that would not be recovered from him;

   othe action could be closed by filing a notice of discontinuance; and

   orequesting Mr Toogood to attend to filing the notice of discontinuance of the primary proceedings.

   ·The respondents claim that Mr Toogood has failed or refused to respond to requests to file a notice of discontinuance in accordance with clauses 9 and 9(A) of the deed of discharge and release.

6. The respondents claim further that until the primary proceedings are dismissed by the Court their credit rating is adversely affected by the continuing pending litigation listed against them.

7. It is clear from the Court file that no notice of discontinuance has been filed in this matter. Indeed, no material has been filed by Mr Toogood in these proceedings since 25 June 2008, notwithstanding numerous communications to him from the respondents and the Deputy District Registrar of this Court in relation to the need to file a notice of discontinuance to end the proceedings.

   Notice of discontinuance

8. So far as relevant to these proceedings, O 22 r 2 of the Federal Court Rules provides:

   (1)   Subject to subrules 2 and 3 a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with Form 29:

   (a)    at any time before the directions hearing -- without the leave of the Court or the consent of any other party;
   (b)    where after the directions hearing the proceeding continues on pleadings but the pleadings are not closed -- without the leave of the Court or the consent of any other party;
   (c)    where judgment has not been entered -- with the consent of all the parties; and
   (d)    at any time -- with the leave of the Court.

   (2) …

   (3) …

9. By filing a notice of discontinuance an applicant brings to an end the claim in the proceedings. In this case it does not appear to be in dispute that the respondents have complied with their obligations under the deed executed between by the parties on or about 31 July 2008. It appears that Mr Toogood, as the applicant in the proceedings, has been at liberty since around 1 September 2008 to file a notice of discontinuance pursuant to O 22 r 2(1)(c) but has not done so.

10. Prior to the hearing this morning I understand Mr Toogood contacted the Court Registry to enquire whether he could appear by telephone. At the hearing this morning Mr Toogood appeared by telephone representing himself, and made a statement to the effect that he had provided a notice of discontinuance some time ago to the solicitors for the respondents, and therefore did not understand why the matter was still before the Court. There is no evidence before the Court in relation to this claim other than Mr Toogood’s statement. This statement appears inconsistent with the fact that Mr Toogood has been aware of the notice of motion currently before the Court since he was served with an affidavit attaching a copy of the notice of motion on 22 March 2011, yet has apparently taken no steps to ensure that a notice of discontinuance was filed since that time.

11. The respondents, of course, are not in a position to “discontinue” the primary proceedings because they were never the instigators of that litigation.

    Consideration

12. In the circumstances I am satisfied that:

    ·the parties to these proceedings have executed a deed settling the proceedings;

    ·the deed records the terms of a binding full and final settlement of the proceeding;

    ·the respondents have complied in full with their obligations to the applicant in full and final settlement of the claims of the applicant; and

    ·the applicant has either failed or refused to file a notice of discontinuance in accordance with the deed.

13. At the hearing this morning the respondents were represented by Ms Angove of MacDonnells Law. After some discussion, Ms Angove informed the Court that the parties sought an order that the application in the primary proceedings be dismissed, with no order as to costs.

14. I consider that it is open to the Court to order that Mr Toogood’s application be dismissed pursuant to:

    ·section 31A(2) Federal Court of Australia Act 1976 (Cth); or

    ·Order 20 rule 5 Federal Court Rules; or

    ·Order 35 rule 1 Federal Court Rules.

15. Section 31A(2) provides:

    (2)  The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

    (a)  the first party is defending the proceeding or that part of the proceeding; and
    (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

16. On the material before the Court, it is clear that the matter has, in fact, settled, but that for reasons unknown a notice of discontinuance has not been filed. I am satisfied that Mr Toogood has no reasonable prospect of successfully prosecuting the proceeding and that therefore the matter should stand dismissed.

17. Further, O 20 r 5 provides:

    Stay or dismissal (proceedings commenced on or after 1 December 2005)

    (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:

    (a) the proceeding or claim is frivolous or vexatious; or
    (b) the proceeding or claim is an abuse of the process of the Court.

    (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.

    (3) The Court may receive evidence on the hearing of an application for an order under subrule (2).

18. In the alternative, I consider that, in light of the apparent settlement of the proceedings but the apparent failure or refusal of Mr Toogood to file a notice of discontinuance, the primary proceedings constitutes an abuse of the process of the Court and should be dismissed.

19. In the further alternative, O 35 r 1 provides:

    The Court may, at any stage of any proceedings, on the application of any party, pronounce such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that order in any originating process.

20. For the reasons I have already given I consider that the nature of the case before me justifies an order dismissing the primary proceedings.

21. I am fortified in this approach by reference to two cases on point, being Corbett v Bolesworth [2009] NZHC 1208 and Thompson v Macedon Shire Ranges Council [1999] VSC 338.

22. In Corbett, the plaintiff commenced proceedings against the defendants in their capacity as trustees of a named family trust. The plaintiff sought a range of relief, including the removal of one of the trustees, Ms Bolesworth. As a result of a judicial settlement conference, the parties signed a document entitled “Joint memorandum of counsel regarding settlement of proceeding.” The settlement memorandum required Ms Bolesworth to resign as a trustee and a notice of discontinuance to be filed by the plaintiff upon receiving notice of the resignation. Ms Bolesworth did resign, and the plaintiff was given notice of the resignation. The defendant trustees claimed that the plaintiff then wrongly refused to file a notice of discontinuance.

23. Woodhouse J found that there had been full accord and satisfaction between the parties and that the trustees had complied with their obligations under the settlement memorandum. His Honour held that the plaintiff’s claim should be struck out and that he should be liable for the costs of the defendant trustees.

24. In Thompson the plaintiffs claimed that the defendant Shire Council made fraudulent or negligent misrepresentations to them and the mortgagee of relevant land in relation to rights of access to an approved reticulated water supply. The plaintiffs claimed further that, as a result of these misrepresentations, the relevant land was sold for a much lower price than would otherwise have been received had accurate representations been made by the defendant. At mediation the action was settled and terms of settlement were executed by the parties. Those terms included provisions to the effect that the defendants would pay to the plaintiffs the sum of $25,000 in full and final settlement of the matter, and that upon payment of the sum of $25,000 the plaintiffs would file a notice of discontinuance. The plaintiffs subsequently refused to file the notice of discontinuance, and sought to have the matter set down for trial on the grounds that the relevant payment was made late, and further that they were not satisfied with the manner in which the mediation had been conducted.

25. Beach J held on the facts before his Honour that there was no reason why the plaintiffs should not be held to their agreement, that the substantive proceedings should stand dismissed, and that the plaintiffs should bear the costs of the defendants.

    Conclusion

26. I am prepared to make the orders sought by the parties, on the understanding that I do so because I consider the proceedings should be dismissed as being either an abuse of the Court’s process or because on the facts Mr Toogood clearly has no claim to prosecute, and the proceedings should not continue to clog the Court’s processes. In the comparable cases I have cited the Courts have awarded costs (including indemnity costs) against an applicant who has failed or refused to file the relevant notice of discontinuance. In this case I make no order as to costs, as a result of the agreement of the parties in the circumstances of the case and the clear wish of the respondents for this litigation to be concluded.

27. In Re Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at [13] French J observed that one of the principles underlying the power of the courts to dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources. The only reason the parties were in Court today is because a notice of discontinuance had not been filed. The responsibility for ensuring that the notice of discontinuance be filed with the Court was on Mr Toogood – it was his notice, not that of the respondents. The hearing and the need for today’s orders has been a waste of both resources of the Court and resources of the parties.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       8 June 2011