FEDERAL COURT OF AUSTRALIA

Walker v Body Logic Resources Pty Ltd [2009] FCA 375

DR ROBERT WALKER v BODY LOGIC RESOURCES PTY LTD, SCENIC CLIFF PTY LTD T/AS BODY LOGIC RESOURCES and LISA ROBYN MCASEY

NSD 373 of 2008

BUCHANAN J

17 APRIL 2009

SYDNEY

THE COURT ORDERS THAT:

1.         Part 1 of the notice of motion filed on 27 March 2009 be heard ex parte and be made specially returnable for hearing, with the respondents’/cross applicants’ solicitors to attend via video link from the Adelaide Registry.

2.         Instead of service as required by the Federal Court Rules, the following steps be taken in these proceedings by the respondents/cross-claimants for the purposes of bringing documents to the attention of the applicant/cross-respondent and any document sent to the applicant/cross-respondent in the following manner will be deemed to have been served on the applicant/cross-respondent at the times specified below:

            2.1       by prepaid registered post to the address: “4916 Whisper Lake, Las Vegas NV 89131” and shall be deemed served on the seventh day from and including the date of postage.

3.         The applicant pay the respondents’ costs of and incidental to Part 1 of the notice of motion on an indemnity basis.

4.         The notice of motion be adjourned for further hearing to 10:00am Monday, 4 May 2009.

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

BUCHANAN J:

1                          This judgment deals with a notice of motion brought by the respondents.  The notice of motion is in two parts: the first part seeks ex parte orders for substituted service and costs on an indemnity basis.  The second part, with which it is unnecessary to deal with in the present judgment, seeks that the application be dismissed and judgment for the respondents on a cross-claim. 

2                          The proceedings were commenced on 18 March 2008.  An amended statement of claim was filed on 28 April 2008.  The cross-claim was filed on 11 June 2008 with a defence to the amended statement of claim.  A reply and defence to the cross-claim was filed on behalf of the applicant on 30 June 2008.  On 23 July 2008, I ordered that the applicant provide security for costs in the sum of $44,000 within 28 days.  I also ordered that the parties exchange proposed categories of documents for discovery by 1 August 2008. 

3                          The applicant did not comply with the order requiring security for costs to be provided and the proceedings had been stayed for that reason since 9 September 2008.  The applicant has also not provided a list of categories for discovery.  Apart from the formal steps taken on his behalf by solicitors then acting for him, represented by the exchange of pleadings and appearances at directions hearings, the applicant appears to have taken no step of any consequence in the proceedings.  His solicitors no longer act for him and told the Court on a previous occasion that they had been unable to obtain instructions from him. 

4                          In the circumstances, I am satisfied that an order for substituted service is appropriate.  The address to which, the respondents submit, service should now be made is an address in the United States of America: 4916 Whisper Lake, Las Vegas NV 89131.  That is an address for service which has been used in proceedings in the Supreme Court of South Australia by both Withers J and Sulan J.  It is also the address used by his former solicitors to advise the applicant that they would no longer act for him.  I am satisfied that it is an appropriate address for service to be used in connection with the proceedings in this Court. 

5                          I am also satisfied, in the circumstances of the present case, that the respondents have been unjustifiably put to expense in dealing with the proceedings commenced by the applicant and in particular to unjustified expense in connection with the present notice of motion. 

6                          Mr Moritz, who appeared for the respondents, also invited me to draw inferences from the applicant’s conduct in relation to proceedings against him in the Supreme Court of South Australia but it is not necessary for me to rely upon those matters and I do not do so. 

7                          I am satisfied that this is one of those unusual cases where an order for indemnity costs is appropriate.  Accordingly, I make the orders sought in Part 1 of the notice of motion.  The notice of motion will be adjourned for further hearing at 10 am, 4 May 2009. 

Associate:

Dated:         22 April 2009