Welsh v Digilin Pty Ltd

[2006] FCA 1824

FEDERAL COURT OF AUSTRALIA

Welsh v Digilin Pty Ltd [2006] FCA 1824

JAMES ANGUS WELSH v DIGILIN PTY LTD AND DIGILIN HOLDINGS PTY LTD

QUD 476 OF 2005

DOWSETT J
18 DECEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 476 OF 2005

BETWEEN:

JAMES ANGUS WELSH
Applicant

AND:

DIGILIN PTY LTD
First Respondent

DIGILIN HOLDINGS PTY LTD
Second Respondent

JUDGE:	DOWSETT J
DATE:	18 DECEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This matter has been twice set down for trial, in April and October of this year.  On each occasion it has gone off as a result of the applicant’s not being in a position to proceed.  I have previously indicated that I consider that any further step by the respondent in these proceedings should be conditional upon a payment on account of costs to the extent that orders have been made in connection with proceedings to date, and to the extent that the amount of such costs is not in dispute.

2. I have previously raised with counsel the possible forms of such order, but it seems that no final order has been made.  It is therefore appropriate, in my view, that I now deal with the questions of costs to date, to the extent that I can do so.  Given the history of the matter, I am of the view that costs payable pursuant to orders which I make today should be paid forthwith, that is, upon the various quanta being fixed, by assessment or taxation.  In determining that such costs should be paid now, I have been primarily swayed by the previous conduct of the matter, particularly by the fact that two trial dates have been vacated because of the applicant’s conduct.  I have taken into account the fact that it may cause hardship to the applicant but, in the exceptional circumstances of this case, I do not see why any hardship should be borne by either the respondent or the respondent's legal advisers, rather than the applicant.

3. On 4 April 2006, an application was made to adjourn and the trial was adjourned.  I can see no reason why the costs of the application on the 4 April should not be paid by the applicant, and I so order.  As to the respondents’ costs thrown away by the adjournment, the applicant should pay them.  In the case of counsels’ fees, they should be limited to the first day of the hearing, namely 19 April. 

4. The applicant filed a second amended statement of claim, par 23(b) of which raised various matters, a number of which have subsequently been abandoned.  I order that the respondents’ costs of the issues raised by par 23(b) of the second amended statement of claim, to the extent that they no longer form part of the applicant's claim, be paid by the applicant.

5. The trial was set down for hearing in October 2006.  Argument took place on the 2nd and 3rd of October, prior to the matter being adjourned, the applicant not being in a position to proceed.  The applicant should pay the respondents’ costs of those two days.

6. The applicant has today been given leave to deliver a further amended statement of claim.  The applicant should pay the respondents’ costs thrown away by reason of amendments effected by that further amended statement of claim.  

7. There was, at one stage, an application to wind up Digilin Holdings Pty Ltd.  That application was dismissed on 7 December 2006.  To the extent that the respondents’ costs of these proceedings have been increased by the application to wind up Digilin Holdings Pty Ltd, the applicant should pay those costs.

8. I stay the proceedings, pending payment of the sum of $20 000 on account of costs.  I grant the respondents liberty to apply for further stays as those costs are assessed.

9. I will also give the respondents liberty to apply from time to time for further stays of the proceedings pending the payment of additional amounts by way of costs as they are quantified by assessment or taxation.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       22 December 2006

Counsel for the Applicant:	Ms C Heyworth-Smith
Solicitor for the Applicant:	Messrs Efron and Associates
Counsel for the Respondent:	Mr M Ambrose
Solicitor for the Respondent:	Messrs Clarke Kann
Date of Hearing:	18 December 2006
Date of Judgment:	18 December 2006