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[1996] FCA 804
Federal Court of Australia
1996-09-02
Lehane J, Lindgren J
Original judgment source is linked above.
re appropriately be dealt with at the time when, the 28 days having expired, the applicant either has or has not filed and served an amended statement of claim. Mr Reuben, who appears for the respondents (the applicants on the motion), replies in effect that I ought to make an order on several bases. One is that the effect of my judgment is that despite clear warnings in the correspondence about particulars no action was taken by the applicant to propound a satisfactory amendment of a statement of claim which I have now held, substantially in accordance with the respondents' submissions, to have been totally unsatisfactory. He then says that the substantial result of my judgment of 19 August is that if these proceedings are to continue they will in effect be started again with the filing and service of a further statement of claim which, if it is to stand, will inevitably be significantly different from its predecessor. He says, thirdly, that the respondents, who are resident outside the jurisdiction, are entitled to some protection in circumstances where, as he puts it, they have been brought before the Court here on the footing of an application and a statement of claim which I have held to have been seriously defective. That third argument was put also by Mr Reuben strongly in support of his application for a stay pending payment of costs. This is not altogether an easy matter, particularly given the rather unusual character which the proceedings before me took, seen in the context of a clear practice on the part of the Court to make use of the power in Order 62 rule 3 only in very special circumstances. The justification for the general rule is clear enough, particularly in proceedings in which there are a substantial number of interlocutory applications. Plainly in such circumstances it can be highly inconvenient and may be oppressive if before proceedings are finally concluded there is a series of taxations of costs of a series of interlocutory applications. In the end, however, I have concluded that this is a case which is outside the ordinary rule. I was initially inclined to accept the argument of Mr Morris that it was inappropriate and premature to bring this motion in circumstances where, in any event, within a short period from today the applicant, if he is to continue with these proceedings, must file and serve an amended statement of claim. However, I did, on the motion of the respondents, grant liberty to apply. It is, I think, clear that whatever happens in relation to the future conduct of these proceedings the costs to date, at least since the making of the formal request for particulars of the statement of claim, have been, as Mr Reuben put it, thrown away, and those costs of the respondents are in any event payable by the applicant. The proceedings, if they are to be continued by the filing and service of an amended statement of claim, will to a large extent be new proceedings. Whatever the course of those proceedings, there will in substance be a fresh start and nothing that happens in them will affect the liability of the applicant for the costs which, in accordance with the order made on 19 August 1996, he must pay. In the end, therefore, I think this is one of those rare cases where it is appropriate to make an order for taxation and payment forthwith, and I propose to make the orders set out in paragraphs 1, 2 and 3 of the notice of motion.
The application for a stay, however, is quite a different matter. Mr Reuben conceded in his reply that it was in any event appropriate that a stay should not affect the liberty I have already given the applicant to file and serve an amended statement of claim. Certainly it would be inappropriate to make an order now which would deprive the applicant of that opportunity. I think Mr Morris' argument about prematurity is right in relation to the application for a stay. In circumstances where the applicant either may or may not take advantage of his right to file and serve an amended statement of claim and where the content of any such pleading is, of course, as yet unknown, it seems to me wrong to take that step. The appropriate course in my view is to await the expiry of the 28 days from 19 August and the filing and service of any amended statement of claim. Accordingly, I propose to refuse to make an order staying the proceedings. I propose, rather, to grant liberty to apply on the same terms as those on which I granted it on 19 August. That leaves finally the question of the costs of this motion. My view is that, having regard to a number of matters - one being the short time remaining between today and the date on which an amended statement of claim, if it is to be filed, must be filed and another being the respondents' substantial success but partial failure on the motion - the question of the costs of the motion should be deferred pending at least the expiry of the time for filing and service of an amended statement of claim. Accordingly, I propose simply to reserve the costs of today's motion.
I make orders 1, 2 and 3 as set out in the notice of motion. The costs of the motion are reserved and the parties have liberty to apply on three days' notice. I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane. Associate: Dated: 2 September 1996 Heard: 2 September 1996 Place: Sydney Decision: 2 September 1996 Appearances:Mr B Morris of counsel instructed by Benjamin & Khoury appeared for the applicant. Mr S Y Reuben of counsel instructed by Cassidy Gibson Howlin appeared for the respondents.
ANTHONY VASYLI
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