FEDERAL COURT OF AUSTRALIA

Bloomsdale Greeting Cards v He [2004] FCA 321

BLOOMSDALE GREETING CARDS PTY LTD V JAI LI HE AND LONG CHAMP ENTERPRISES PTY LIMITED

N736 of 2002

JACOBSON J

17 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter was listed for hearing this morning.  However, counsel for the applicant who has been briefed only very recently has appeared before me to seek leave to file a notice of change of solicitors pursuant to O 45 r 7.  The effect of what is asked is for the solicitor to withdraw from the proceedings and for the proceedings, nevertheless, to remain on foot.

2                     The matter was before me for directions on 30 October 2003.  On that date Mr Carolan of counsel appeared for the applicant.  I set the matter down for hearing on today's date.  I made directions for the applicant to file a court book and for the applicants to file a written outline of opening which was to be filed and served five days prior to the hearing date.

3                     Yesterday I became aware that the directions that I made on 30 October 2003 had not been complied with.  I arranged for my associate to contact the solicitor for the applicant.  My associate told me that the solicitor had said that he was unable to obtain instructions from his client and that he wished to file a notice of ceasing to act pursuant to O 45 r 7.  That is the application which Ms King has made to me this morning.

4                     Ms King does not have an affidavit in support of the application but she has informed me that her instructing solicitor wrote to the applicant in November 2003 to advise the client that the matter had been listed for hearing today.  However the solicitor apparently received no response from the client.

5                     Notwithstanding this fact, the applicant's solicitor took no steps to notify the Court that he had no instructions and that the matter would not be proceeding this morning.  It was only when my associate contacted the solicitor that this became clear.  Indeed, it appears from what I have been told, that the solicitor was not even going to attend the hearing but was proposing to file a notice in the registry.  I requested my associate to inform the solicitor that leave to file a notice was required under the Federal Court Rules and that I expected that there would be an appearance before me this morning.

6                     I do not consider that the circumstances of which I have become aware and of which Ms King has put to me this morning justify the grant of leave under O 45 r 7 for the filing of a notice of ceasing to act.

7                     The Court has been put to considerable inconvenience as a result of the failure of the solicitor to notify the Court that the matter would not be proceeding, notwithstanding the fact that it was listed for hearing some five months ago and, notwithstanding also, that the solicitor has apparently been aware for some four months that the matter would not proceed.

8                     Order 10 rule 7(1)(a) confers on the Court a power to dismiss the proceedings where the party fails to comply with an order of the Court directing the party to take a step in the proceedings.  That has happened here because no Court book was filed and no written outline of opening as directed by me on 30 October 2003 has been filed.  Moreover the applicant is not ready to proceed today and I would have power under the rules to dismiss the proceedings for want of prosecution.

9                     The Rules of Court have recently been amended by the insertion of a new rule 4A which provides that unless a rule expressly provides otherwise the Court may exercise any power under the rules of its own motion.  There is nothing in O 10 r 7(1)(a) which provides that the Court may not, of its own motion, dismiss a proceeding pursuant to the rule.  The rule merely provides that any other party may move the Court where a party is in default.  I do not see that this rule expressly provides the Court cannot exercise the power of its own motion and I propose to make an order under the rule dismissing the proceedings for failure on the part of the applicant to comply with the directions that I made on 30 October 2003.

10                  If necessary, I would also have been prepared to make an order under the appropriate rule dismissing the proceedings for want of prosecution under O 30 r 5.

11                  That leaves only the question of costs.  It seems to me that the real issue arises, as to whether costs ought to be paid by the solicitor.  If the Court had been notified earlier, then the expense of Court reporting and other associated expenses would not have been incurred and the date could have been given to another proceeding.

12                  I cannot exercise my power to order the solicitor to pay the costs personally under O 62 r 9 without giving the solicitor an opportunity to be heard.  It would seem to me that it is appropriate, in the circumstances, that the solicitor if he is so advised file an affidavit with the Court putting before me the facts and circumstances upon which he relies to resist the making of a personal costs order.  If costs are not ordered personally against a solicitor, I would be inclined to order the applicant to pay the costs. 

13                  I will direct that the solicitor file an affidavit within seven days of today's date.  I will then consider in the light of the affidavit, whether it is appropriate to list the matter for a short hearing on the question of costs.  I will notify the solicitor of the date.  It, of course, follows from what I have said that I have refused leave to the solicitor to file a notice of change of solicitor.  In any event the solicitor, as an officer of the Court, is amenable to the jurisdiction of the Court pursuant to the rules and pursuant to the ordinary practice of the Court.

14                  I should add that nothing I have said this morning reflects in any way adversely on Ms King.  She was only briefed at around 4.30 pm or 5.00 pm last night and has appeared before me this morning on very short notice to quite properly put her instructions to me.  The fact that I have rejected her application does not in any way suggest any criticism whatsoever of Ms King. 

Associate:

Dated:              24 March 2004