FEDERAL COURT OF AUSTRALIA

Cundy v ACT Cross Country Club Inc [2009] FCA 1461  

DAVID BRIAN CUNDY AND FRANCES MARY SETON TRADING AS CUNDY SPORTS MARKETING v ACT CROSS COUNTRY CLUB INC

NSD 952 of 2009

PERRAM J

30 NOVEMBER 2009

SYDNEY

THE COURT GRANTS:

1. Costs certificates under section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the discontinued hearing on 10 November 2009.

THE COURT ORDERS THAT:

1.                   The applicants file and serve any affidavits on which they wish to rely by 28 February 2010;

2.                   The respondent file and serve any affidavits on which it wishes to rely by 14 May 2010 (including the evidence in chief on the cross claim);

3.                   The applicants file and serve any affidavits in reply and any affidavits on the cross claim on or before 27 May 2010;

4.                   The cross-claimants file and serve any affidavits in reply on the cross claim issues on or before 11 June 2010;

5.                   Stand over the proceedings to 9.30 am on 5 July 2010 for further directions;

6.                   Liberty to apply on 3 days’ notice;

7.                   Costs reserved.

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                                             This matter was listed for directions before me on 10 November 2009.  The respondents and their legal representatives are located in Canberra and have ordinarily appeared by way of a video link.  When the matter was listed for directions on 10 November 2009 the video link did not work to a standard which was sufficiently satisfactory to permit the directions hearing to proceed in an orderly fashion.  In the circumstances, I adjourned that directions hearing to 11 November 2009.  The consequence of that state of affairs is that both parties suffered the costs of having to attend a directions hearing which was then aborted.  That situation is not to be characterised as being the fault or responsibility of either party. 

2                                             Section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) confers a power on this Court to issue a certificate if the court is of the opinion that costs under that Act should be awarded.  The circumstances set out in s 10 include the aborting of a proceeding.  A proceeding is defined in s 3 of the Act in an inclusive way to include a trial or appeal.  In my opinion, that inclusive definition extends also to a directions hearing. 

3                                             It follows that what occurred on 10 November 2009 was a proceeding, and that it was aborted within the meaning of s 10(3).  The authorities which deal with the circumstances and the manner in which the discretion under s 10 is to be exercised are various but, compendiously, may be summarised by saying that the power is to be exercised judicially and is of a broad nature.

4                                             In my opinion, this is an appropriate case for the ordering of the issue of a certificate.  I therefore order that there be a certificate issued pursuant to s 10(3) in respect of the discontinued directions hearing on 10 November 2009 and that such a certificate should be issued both to the applicants and to the respondent.

5                                             The respondent has also sought a certificate in relation to their costs of making the application under the Act.  I do not think that the jurisdictional prerequisites to the making of that order are present because the making of that application does not arise from an aborted proceeding within the meaning of s 10(3).  In any event, even if the power did arise, I do not think it would be appropriate to make such an order.

Associate:

Dated:         30 November 2009