Rambaldi v Mullins

the first respondent's application for judgment 13 The first respondent, Ms Teagan Mullins, has at all times been a party in the proceeding but she put on no evidence or submissions and played no active role. On 22 August 2016 I handed down reasons for judgment and invited submissions from the parties on several discrete issues. 14 On 5 September 2016 the first respondent filed written submissions, on different issues from those upon which I sought submissions. She seeks orders in the following terms: 1 The name of the First Respondent be amended from "Teagan Mullins" to "Teagan Maree Mullens". 2 Judgment for Teagan Maree Mullens against the Second to Eighth Respondents in the sum of $1,308,832 plus interest. 3 The Second to Eighth Respondents shall transfer the shares: (a) held by AR & KH Pty Ltd in the Fifth Respondent, GHR Custodian Pty Ltd ("GHR Custodian"); and (b) held by GHR Custodian in the Second and Fourth Respondents, namely Civil Pacific Services Group Pty Ltd and Global Civils Group Pty Ltd respectively, to the First Respondent within twenty-one (21) days, and shall do all things and sign all documents necessary to give effect to these orders. As directors of AR & KH Pty Ltd the Seventh and Eighth Respondents shall take all steps necessary to transfer to the Trustees half (in number and value) of the shares held by that company in GHR Custodian. 15 The second to eighth respondents and the Trustees oppose these orders. 16 The first respondent seeks these orders in her capacity as the Administrator of the Estate of the late Joseph Antoun and seeks leave to tender Letters of Administration dated 22 February 2016. She did not make a proper application to the Court. The submissions state that "if objection is taken to the lack of formality a proposed Interlocutory Application and Cross-Claim are annexed to these submissions." The proposed Cross-Claim that is annexed does not contain any grounds. It states that the grounds are set out in an accompanying affidavit but no affidavit has been filed. 17 The first respondent submits that the orders she seeks accord with the essential findings of fact in the substantive judgment. She argues that the basis for the relief ordered for the Trustees was that Antoun entered into the October Deed, in part, as agent for the Bankrupt. She contends that if the Trustees are entitled to relief because Antoun acted as the Bankrupt's agent in relation to half of the monies payable under the October Deed, it follows that the first respondent (as Administrator of Antoun's estate) is entitled to relief for the other half. On the first respondent's submissions Antoun's estate is entitled to judgment in the sum of $1,308,832 and is also entitled to have the shares in the companies in the Global business transferred to her by virtue of clause 2(c) of the October Deed. 18 In my view the first respondent's application must be refused. For the reasons I explain, I decline to grant judgment for the first respondent against the second to eighth respondents and I refuse leave to file a Cross-Claim against the second to eighth respondents. 19 I do so, first, because the first respondent has not filed an originating process that clearly defines the issues between her and the second to eighth respondents, and she has not made any proper application to the Court. 20 Second, the submissions seek orders for judgment for the first respondent against the second to eighth respondents without allowing the second to eighth respondents any opportunity to defend that case. The issues between the first respondent and the second to eighth respondents are not necessarily identical to the issues between the Trustees and the second to eighth respondents. It is likely, as the second to eighth respondents' submit, that if given the opportunity they could have adduced evidence and made submissions relevant to the issues in the proposed Cross-Claim. If the first respondent's application is allowed they will have been denied an opportunity to defend the Cross-Claim. I also accept the Trustees' submission that, had the first respondent participated in the substantive proceeding, the Trustees may have conducted their case differently. In such circumstances it would be unjust to give judgment for the first respondent. 21 Third, the first respondent was on notice of the proceeding, remained a party, and chose not to participate. If she had participated in the trial and put on evidence and/or submissions in support of the position that she now puts, the proposed Cross-Claim and the second to eighth respondents' defence in that regard could have been dealt with in the trial. 22 The first respondent is now out of time to file a Cross-Claim and she must seek leave of the Court before bringing that case. In deciding whether to grant leave, the Court is required to balance the first respondent's right to bring the Cross-Claim against the injustice to the second to eighth respondents of allowing it to be brought in circumstances where the first respondent's delay has been gross, the trial has been run and judgment has been delivered. The first respondent has put on nothing to explain her delay. 23 Appropriate limits must be placed upon the first respondent's right to bring a Cross-Claim. The Court's obligation was to give her a sufficient opportunity to identify the claims she wished to agitate: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ("Aon") at [112]-[113]. In my view she was given that opportunity and she chose not to take it up. 24 I also take into account that the first respondent's delay in bringing the Cross-Claim will have a deleterious effect on other litigants seeking resolution of their cases: Aon at [114]. The trial in this matter is complete and the Court has delivered judgment. Granting the first respondent leave to now bring the Cross-Claim will cause a further hearing which will inevitably have an impact on the speed with which other litigants can have their matters heard and dealt with. 25 Fourth, the first respondent's approach to the Cross-Claim is incompatible with her obligation to act consistently with the overarching purpose in ss 37N and 37M of the Federal Court of Australia Act 1976 (Cth) ("Act"). Section 37M provides that the overarching purpose of the civil practice and procedure provisions of the Act is to facilitate the just resolution of disputes, according to law, as quickly, inexpensively and efficiently as possible. Instead of seeking the resolution of the Cross-Claim consistently with the overarching purpose the first respondent did nothing. She chose not to bring a Cross-Claim and she chose not to adduce evidence or make submissions in support of that claim. It was not until after judgment was delivered that, in effect, she seeks leave to file the Cross-Claim out of time. If the first respondent is successful in that application I presume that she will seek to have the Cross-Claim heard and judgment given. That will require a separate hearing which may give rise to some injustice for the second to eighth respondents and will certainly lead to some wastage of the time and resources of the second to eighth respondents and the Court. In my view, in sleeping on her rights to make a Cross-Claim and now attempting to bring that claim, the first respondent's approach was far from just, quick or efficient. 26 I refuse the first respondent's application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)