Barodawala v Giasoumi

Consideration 15 At the request of the applicant, and with the respondent's consent, I have dealt with this matter on the papers. 16 The evidence in support of the application for leave to appeal is contained in the applicant's two affidavits, each dated 23 March 2015. The shorter of the two affidavits annexes a draft notice of appeal. 17 Each party made written submissions. 18 The relevant considerations are: (1) Whether in all the circumstances the costs order is attended by sufficient doubt to warrant its reconsideration on appeal; and (2) Whether substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 at [2]; (1991) 33 FCR 397 at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. 19 The proposed grounds of appeal raise three alleged errors: (1) The applicant was denied procedural fairness by reason of the short notice of the hearing and the resulting inability to obtain legal representation for the hearing; (2) The failure to take into account rule 2.04 of the Federal Circuit Court Rules 2001 (Cth), that not being a matter raised by the applicant at the hearing but which, it is said, would have been raised on the applicant's behalf if he had been legally represented; (3) The primary judge's failure to take into account that the summons was in the form that had been recommended by the Registry. 20 Rule 2.04(1) provides that "unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient". 21 In my view, having regard to the language of the orders and the notes to the orders, it is reasonably arguable that the reason for the primary judge's decision to set aside the summons was that the summons was not in the correct form, and that her Honour did not have regard to rule 2.04. I accept that there is a question about whether her Honour ought to have had regard to rule 2.04, even though it was not drawn to her attention by the applicant. 22 I also consider that the short notice given to the applicant for the hearing, in the particular circumstances of this case, raises a doubt about whether the applicant was afforded procedural fairness. Those circumstances include the fact that the applicant had retained counsel, and was given very little time to prepare to appear on his own behalf without the representation he contemplated. 23 I also accept that, having regard to the language of the note to order 2, it is arguable that the primary judge did not take into account the applicant's evidence that he followed the form of summons recommended to him by the Registry. It is arguable that this evidence was relevant to whether the costs order should have been made. On this basis, I accept that there is a doubt as to whether the exercise of her Honour's discretion miscarried. 24 On the other hand, I also note that, in Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; (2010) 265 ALR 112 at [113], the Full Court stated that "appellate courts are loathe to overturn discretionary costs orders made by single judges. This reluctance reflects a history of caution expressed by appellate courts when asked to overturn discretionary judgments generally." 25 Concerning the respondent's submissions: (a) It is not obvious on the available material that the applicant had no entitlement to issue a summons to produce to the applicant. In particular, contrary to the respondent's submissions, the 2013 FCC decision does not appear to support that proposition, or the proposition in the written submissions that an examination summons against the respondent had been set aside; (b) It is not obvious that the ambit of the summons was so wide that it was liable to be set aside as an abuse of process. In particular, the decision in Karounos v Official Trustee (1988) 19 FCR 330 does not appear to support a conclusion that the summons was liable to be set aside as an abuse of process; (c) It is not clear that the summons constituted an application by the creditor to examine the trustee (at least, not apart from establishing the production of the documents), where the summons sought production of the trustee's files. (d) It is not clear that the summons was liable to be set aside by reason of the decision in Vitek v Taheri [2012] FMCA 536. 26 Taking all these matters into account, I am satisfied that the costs order is attended by sufficient doubt to warrant its reconsideration on appeal. I accept that substantial injustice would result if leave were refused supposing the decision to be wrong because the costs order would put the applicant out of pocket for a significant sum. 27 Accordingly, I will grant leave to appeal from the costs order. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.