Atkins v Master Builders Association of NSW

[2007] FCA 554

Federal Court of Australia|2007-04-12|Before: Jacobson J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2007-04-12

Before

Jacobson J

Source

Original judgment source is linked above.

Judgment (1 paragraphs)

[2]

The proceedings be listed for further directions on 12 April 2007 at 9.30am."

14 On 10 April 2007, a further document entitled "Affidavit/Statement of Claim, Breach of S.52 of Trade Practices Act (Cwlth) 1974" was faxed to my chambers. The document consisted of four numbered paragraphs and five unnumbered paragraphs. There were two pages of a schedule setting out Mr Atkins' claim for damages of $5 million. The document stated that the pleading was prepared by Mr Atkins.
15 It also stated as follows:

"Future Address for Service: C/- Sue Chrysanthou - Barrister Angela Bowne - Senior Counsel Blackstone Chambers Level 62, MLC Tower, Sydney Telephone: (02) 9220 9800 Facsimile: (02) 9233 4209" 16 A number of documents and an affidavit were attached. 17 When the matter was called on for directions this morning, Mr Colman of counsel for the Master Builders Association sought to proceed with the remainder of the respondent's motion. Mr Atkins appeared in person and informed me that his counsel could not appear today. I stood the matter down to 2.15pm. At that time, Ms Thornton of counsel appeared for the applicant. She did so in the best traditions of the bar by appearing on very short notice. She informed me that she has been briefed with the intention of being lead on a future occasion by Ms Bowne SC. 18 It is plain that the document which was faxed to my chambers on 10 April 2007 does not disclose any cause of action whatsoever. It consists of a short narrative about the authorship of the Bathroom Book, it refers to the Master Builders Association's alleged instigation of "intimidation of witnesses", and a number of persons are named and said to have been intimidated. 19 Ms Thornton sought an adjournment of six weeks within which to file a further amended statement of claim. She told me quite properly that she and senior counsel would need that length of time within which to obtain instructions from Mr Atkins to be in a position to prepare a statement of claim. Ms Thornton submitted that the facts disclosed in the various statements of claim that had been put before the Court may give rise to causes of action, and that ordinarily costs would be determined after a final hearing of the case, but that her client would incur costs of the entire proceedings if they were dismissed summarily. 20 However, it seems to me that the proper resolution of the matter and the proper exercise of my discretion turns upon a weighing of the competing hardships which will be suffered by either Mr Atkins or the Master Builders Association. 21 It is plain from the history of the matter that the Master Builders Association has incurred considerable costs to date, and that it has incurred those costs in circumstances in which no reasonable cause of action has been disclosed in any statement of claim put before the Court. Thus, the position is that Mr Atkins seeks a further indulgence from the Court, notwithstanding his failure to date to propound a properly arguable cause of action and to leave the Master Builders Association to bear the cost of his own failures. 22 It seems to me that the balance falls clearly on the side of the Master Builders Association. There is no reason why it should be left in a position where it has to incur the consequences of Mr Atkins' own failure to put forward a pleading which complies with the ordinary rules. The prejudice to which Mr Atkins points is a concern about his own costs liability but it seems to me that he must bear the costs of his own failures rather than to leave the Master Builders Association in a position where it continues to suffer possible cost consequences arising from the continuation of proceedings which to date have not been shown to have any arguable basis whatsoever. 23 I should point out that these proceedings are not the first proceedings brought in this Court by Mr Atkins against the Master Builders Association. In 2005, Mr Atkins brought proceedings which were dealt with by Lindgren J in a judgment dated 17 February 2006; see Atkins v Masters Builders Association of NSW [2006] FCA 142. His Honour dealt with a claim set forth in a statement of claim which was in similar terms to the original statement of claim filed in the present proceedings. His Honour came to the following conclusion at [14]: "All things considered, and, in particular, having regard to the fact that this is the third (or fourth attempt) by Mr Atkins to plead claims cognisable at law, the appropriate course is to dismiss the proceeding under Order 20 rule 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed." 24 His Honour observed at [15] that this was "not an adjudication on the merits of any claim which Mr Atkins may have" and the dismissal did not prevent Mr Atkins from commencing a fresh proceeding. His Honour sounded a warning which Mr Atkins does not seem to have accepted, namely that Mr Atkins have thorough and considered legal advice in relation to his undoubtedly strongly felt grievances against the Master Builders Association. 25 The present proceedings as propounded in the various documents that have been put before the Court consist of no more than a narrative of complaints which originated in the documents filed in the proceedings before Lindgren J. The allegations have varied over time. The latest form of the statement of claim is different from that which was before Lindgren J, but in fact it is abbreviated in its terms and now contains no reference to the claims of defamation which appeared to underlie earlier complaints made by Mr Atkins. 26 Indeed, the present statement of claim, unlike the document filed in the proceedings before Lindgren J, does not seek to make any attempt to link the narrative of facts to any cause of action under the Trade Practices Act. 27 If indeed Mr Atkins does have a claim for damage under s 82 of the Trade Practices Act, the factual matters upon which he apparently intends to rely occurred in 2003 and 2004. He therefore has sufficient time within which to plead any further cause of action without being barred by the six year limitation contained in s 82(2) of the Act. 28 It seems to me that the proper exercise of my discretion therefore is to make an order under Order 20 rule 2 of the Federal Court Rules dismissing the proceedings with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.