United Broadcasting International Pty Ltd v TV Plus Int Pty Ltd

[2007] FCA 799

FEDERAL COURT OF AUSTRALIA

United Broadcasting International Pty Ltd v TV Plus Int Pty Ltd [2007] FCA 799

UNITED BROADCASTING INTERNATIONAL PTY LTD AND ANOR v TV PLUS INT PTY LTD & ORS

NSD2379 OF 2006

EMMETT J
10 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2379 OF 2006

BETWEEN:

UNITED BROADCASTING INTERNATIONAL PTY LTD

First Applicant

JAVNI RADIOTELEVIZIJSKI SERVIS BOSNE I HERCEOGOVINE
Second Applicant

AND:

TV PLUS INT PTY LTD

First Respondent

TV PLUS BROADCASTING COMPANY PTY LTD
ACN 112 571 329

Second Respondent

TV PLUS OPERATIONS COMPANY PTY LTD ACN 110 294 294
Third Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

10 MAY 2007

WHERE MADE:

SYDNEY

THE COURT:

1.   Orders that the proceeding be stayed until security for costs in the sum of $57,500 is furnished by the applicants in a manner satisfactory to the District Registrar.

2.   Grants leave to the respondents to move for summary dismissal of the proceeding if security is not provided in accordance with order 1 within 28 days.  Any such motion for summary dismissal may be made returnable before Emmett J for directions on 13 July 2007.

3.   Directs the respondents to respond to the applicant's notice to admit within 14 days after security has been provided in accordance with order 1.

4.   Directs the applicants to file and serve on or before 22 June 2007 all lay and expert evidence on which they wish to rely in support of their claims.

5.   Stands the proceeding and the motion for security over for further directions on 13 July 2007.

6.   Directs that access to the folder produced in Court today be restricted to Mr Holmes and his solicitors. 

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2379 OF 2006

BETWEEN:

UNITED BROADCASTING INTERNATIONAL PTY LTD
First Applicant

JAVNI RADIOTELEVIZIJSKI SERVIS BOSNE I HERCEOGOVINE
Second Applicant

AND:

TV PLUS INT PTY LTD
First Respondent

TV PLUS BROADCASTING COMPANY PTY LTD
ACN 112 571 329
Second Respondent

TV PLUS OPERATIONS COMPANY PTY LTD
ACN 110 294 294
Third Respondent

JUDGE:	EMMETT J
DATE:	10 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondents seek security for costs.  Their motion for security was filed shortly after the proceeding was commenced.  For various reasons the motion has not yet been dealt with and it is not possible for me to finish dealing with it today.  The applicants have, for reasons that have not been explained, failed to provide any evidence whatsoever as to their financial position.  They wish to dispute the respondent’s entitlement to security on the basis of the previous conduct of the respondents. 

2. The applicants have been dilatory in terms of producing evidence as to the likely quantum of costs.  On the other hand, the respondents have filed affidavits indicating that recoverable costs are likely to be in excess of $200,000, that the costs incurred to date exceed $80,000 and that, on taxation, approximately 60% of that is likely to be recovered.  The applicants have indicated that they wish to rely on evidence to the effect that, on taxation, approximately only 40% of solicitor/client costs are likely to be recovered. 

3. The matter was originally listed this morning at 9.30 am but, because of Full Court commitments, I was not able to commence hearing the matter until 2.15 pm.  I have endeavoured to find out what the real issues between the parties are.  Having regard to the constraints of time I consider that it is appropriate to stand the motion over part-heard for further directions on 13 July 2007.  I propose to give directions relating to the provision of security in the meantime.  The directions will not impose any obligation in relation to the security.  I do not propose to order that security be provided but simply to stay the proceeding until security is provided. 

4. If security is not provided within 28 days the respondents will have leave to move for summary dismissal.  Mere failure to provide security will not necessarily lead to dismissal and whether I accede to any application for summary dismissal, of course, will be a matter for argument at the appropriate time.  What I propose is not a totally satisfactory way of dealing with the matter but in all of the circumstances I consider that it is not unjust.  

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       30 May 2007

Counsel for the Applicant:	J Hyde
Solicitor for the Applicant:	Watson Mangioni Lawyers
Counsel for the Respondent:	M Holmes QC
Solicitor for the Respondent:	Middletons
Date of Hearing:	10 May 2007
Date of Judgment:	10 May 2007