FEDERAL COURT OF AUSTRALIA

Piscopo v NOT Lawyers [2008] FCA 1907

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 cited

SAMUEL PISCOPO v NOT LAWYERS, MICHAEL FRANCIS O'NEIL, SIMON GALLANT, DAVID EVANS, ELENA ROSE, BDT HOLDINGS PTY LTD and TERRY DONALD HILL

NSD 1707 of 2008

FOSTER J

11 DECEMBER 2008

SYDNEY

1.                  Upon Ms Jacki Lynn Cole giving to the Court the following undertakings:

(a)                That she will not have any further involvement in any proceedings which concern Mr Samuel Piscopo as the trustee of the bankrupt estate of Mr Terry Donald Hill (hereinafter in this undertaking referred to as “the proceedings”), which proceedings shall encompass the extant examination summons involving the bankrupt estate of Mr Terry Donald Hill, except for the limited purpose of: 

(i)                  settling invoices in relation to her previous work in relation to the proceedings;

(ii)                preparing the files for the purpose of handing them over to another solicitor at NOT Lawyers, namely Mr Michael Stevens; and

(b)               That she will not further discuss the proceedings with any other person at NOT Lawyers or with Counsel briefed in the proceedings, except for the limited purpose of settling invoices in relation to her previous work in and in connection with the proceedings, or otherwise with the express permission of Mr Piscopo; and also

2.                  Upon the respondents’ undertaking to the Court to file and serve within seven days of today’s date an affidavit or affidavits verifying that all reproductions of the documents the subject of the Application in these proceedings have either been deleted from electronic records or otherwise destroyed;

THE COURT ORDERS THAT:

3.                  The proceedings otherwise be dismissed.

4.                  The applicant pay the respondents’ costs of and incidental to the proceedings (as taxed or agreed) on a party/party basis up to and including 4 December 2008 and on an indemnity basis from 5 December 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     At the conclusion of argument, I indicated to Counsel for the applicant that I was minded to accept the undertakings now being offered by Ms Cole and by the respondents as constituting a satisfactory solution to the unfortunate sequence of events which led to the applicant instituting the current proceedings. 

2                     Counsel for the applicant then informed me that he did not require any Reasons for Judgment if that was the course which I intended to adopt.  Counsel for the respondents and Ms Cole took the same position.

3                     Undertakings to the Court were then offered by Ms Cole and by the respondents.  These undertakings were accepted by me.  I then ordered the proceedings otherwise be dismissed.

4                     Counsel for the respondents then sought an order for costs against the applicant.  In particular, she sought an order that the applicant pay the respondents’ costs of and incidental to the proceedings on an indemnity basis from the inception of the proceedings or, alternatively, from 4 December 2008. 

5                     Counsel for the applicant accepts that the applicant must pay the respondents’ costs of and incidental to the proceedings but submits that he should be ordered to do so only on the usual basis, that is to say, on a party/party basis.    

6                     Counsel for the respondents submitted that the proceedings were always doomed to fail because there was no principle that required the clients for whom she appears, or indeed, Ms Cole, to go further than the undertakings which had been offered prior to the commencement of the proceedings.  She also submitted that, in the result, the applicant had failed to obtain any relief in addition to the relief embodied in the undertakings which were offered before the proceedings were commenced. 

7                     Counsel for the respondents also pointed to some evidence to the effect that related proceedings are being funded by two gentlemen, Mr Brooks and Mr James as material that suggests that the proceedings have been brought for an ulterior purpose.  She submitted that, for this additional reason, indemnity costs based upon the principle in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 should be ordered and should be ordered in respect of the whole proceedings.  

8                     It seems to me that more evidence would be required if I were to accept that these proceedings had been brought for an ulterior or extraneous purpose.  I am not prepared to order indemnity costs on this basis.  However, in my view, the proceedings could have, and should have, been resolved before today along the lines of the solution which was ultimately imposed by me earlier today.  That solution had, in substance, been offered by the respondents on 4 December 2008.  Indeed, much of what was offered on 4 December 2008 had been previously offered. 

9                     In those circumstances, I am of the view that the respondents are entitled to indemnity costs as and from 5 December 2008.

10                  Therefore, the orders of the Court will be that the applicant is to pay the respondents’ costs of and incidental to the proceedings (as taxed or agreed) on a party/party basis up to and including 4 December 2008 and thereafter on an indemnity basis.

Associate:

Dated:         17 December 2008