FEDERAL COURT OF AUSTRALIA

Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372

THE COURT ORDERS THAT:

1.                  Dismiss the notice of motion filed on 31 March 2010.

2.                  Dismiss the notice of motion filed on 9 April 2010.

3.                  The applicant pay the respondent’s costs of the notice of motion filed 31 March 2010, as agreed or taxed.

4.                  Each party to pay its own costs of the notice of motion filed 9 April 2010.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is a notice of motion, filed on 31 March 2010, seeking orders that an order made by Collier J on 27 March 2009 for costs be stayed pending the outcome of the appeal in this matter, and that another order of Reeves J made on 4 March 2010 for costs be vacated. 

2                     The reference to Reeves J’s decision in the notice of motion is important.  On 4 March 2010, Reeves J made the following orders:

1.  The applicant’s application for an adjournment is refused.

2.  The applicant’s application for a stay be dismissed.

3.  The applicant pay the respondent’s costs of the stay application.

3                     In his reasons for judgment delivered on 4 March 2010 (Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 204), Reeves J explained that the matter was listed before him on an urgent basis because the applicant (being the same applicant in the present notice of motion) had been presented with a letter of demand in relation to costs assessed under a costs order made by Collier J on 27 March 2009.  The applicant wished to seek a stay in relation to the further execution of that costs order. 

4                     When the matter was called on before Reeves J, according to his Honour’s reasons, Mr Stephens of counsel (who also appears on the applicant’s behalf today) sought an adjournment and directions for hearing of the stay application.  Reeves J adjourned the matter to 2.15pm on that day, 4 March 2010, to allow Mr Stephens to take instructions from his instructing solicitor.  Thereafter, Mr Stephens made another application for an adjournment, but Reeves J refused that adjournment application. 

5                     His Honour then dealt with the application for the stay.  He noted that the costs order made by Collier J on 27 March 2009 had been taxed and allowed in the sum of some $99,000.  The respondent’s solicitors had sent a letter of demand.  That letter of demand prompted the urgent application before Reeves J.  Reeves J noted that he had power under O 52  r 17 of the Federal Court Rules to stay Collier J’s costs order. 

6                     His Honour then dealt with each of the arguments put forward by Mr Stephens on the applicant’s behalf in support of the stay.  At [9] of his reasons Reeves J said:

The second reason put forward by Mr Stephens is that it will be difficult, if not impossible, for the applicant to raise the funds necessary to pay the costs order.  The problem with that submission is that it is not supported by either the affidavit of Mr Hauff, the applicant’s solicitor, or the applicant’s sole director, Mr Lawrence.  In his affidavit, Mr Lawrence does not say that his company is not able to pay the costs order.  All he says is that the applicant company has limited cash flow and the payment of any costs order would put substantial financial strain upon it.

7                     After considering the other submissions on behalf of the applicant, Reeves J dismissed the application for a stay. 

8                     The present notice of motion also seeks an order that the costs order made by Collier J on 27 March 2009 – being the same costs order considered by Reeves J – be stayed. 

9                     The first issue is whether this application should be treated as a second interlocutory application for the same relief in circumstances where the Court has already declined to grant the applicant the relief which it seeks. 

10                  The applicant says that this application should not be treated in that way.  According to the applicant, the application for a stay with which Reeves J dealt was part and parcel of the same notice of motion pursuant to which the applicant sought leave to appeal to the Full Court of the Federal Court in accordance with s 195(2) of the Trade Marks Act 1995 (Cth).  That section provides that “except with the leave of the Federal Court, an appeal does not lie to the Full Court of the Federal Court against a judgment or order of a single judge of the Federal Court”. 

11                  Further, O 52 r 17 of the Federal Court Rules states:

(1)    An appeal to the Court shall not:

(a)    operate as a stay of execution or of proceedings under the judgment appealed from…

except so far as the Court or a Judge or the court below may direct.

(2)    The Court may vary or vacate any direction of the Court or the court below referred to in subrule (1).

(3)    An application for a direction of the Court or a Judge under subrule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below.  An application for a direction under subrule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below.

12                  The applicant emphasises the words, in subrule 3, “…and may be made whether or not a similar application has been made to the court below.”  According to the applicant, Reeves J was “the court below”.  Hence, no application has been made to or determined by the Full Court of the Federal Court.  The Full Court of the Federal Court, pursuant to O 52 r 17, retains full power to control its own processes.  The applicant submits that it follows this cannot be treated as a second interlocutory application for identical relief which the court has already determined and, indeed, dismissed. 

13                  It seems to me that the applicant’s construction of the Federal Court of Australia Act 1976 (Cth), the Federal Court Rules, and s 195(2) of the Trade Marks Act misconceives the nature of the jurisdiction which Reeves J was exercising.  Pursuant to s 195(2) Reeves J was determining whether or not leave should be granted to the applicant to appeal to the Full Court of the Federal Court.  In terms of the stay, as referred to in O 52 r 17, Reeves J was not and could not have been “the court below” as contemplated by that rule.  The court below is a reference to the court as constituted by the judge who determined the matter, namely, Collier J.  However, no application was made by the applicant to Collier J at any time to stay her Honour’s costs order. 

14                  Reeves J was exercising jurisdiction ancillary or incidental to the appeal in his capacity as a judge as referred to in O 52 r 17.  This is the reason that O 52 r 17 refers to “the Court,” “a Judge,” and “the court below.”  The rule reflects the fact that applications for a stay must be determined and heard by a single Judge unless that Judge directs that the application be heard and determined by a Full Court, or the application is made in a proceeding that has already been assigned to a Full Court (see ss 25(2B)(ab) and (2BB) of the Federal Court of Australia Act). 

15                  It follows that I do not accept that O 52 r 17(3) applies in the way which the applicant contends.  In this case, no application has been made to the court below.  Rather, an application was made to a Judge of the Court to stay the execution of the costs order of the court below.  The Judge of the Court, being Reeves J, dismissed that application. 

16                  This application is an application for precisely the same order, that is a stay of the costs order made by Collier J, which the applicant already agitated before Reeves J and which Reeves J dismissed.  The circumstances engage the principles of abuse of process which are critical to the administration of justice.  As set out in the respondent’s outline of written submissions filed on 12 April 2010, there are important considerations of justice which inform the approach of a court to a second interlocutory application for the same relief when an earlier interlocutory application has been dismissed.  Consistent with those submissions, I adopt the principles as summarised by Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49].  His Honour concluded that a second interlocutory application for the same relief might not be an abuse of process where: - (i) there is new material or new evidence which was not available to the moving party at the time the orders were made, (ii) there has been a material change in the circumstances since those orders were made, (iii) there are exceptional circumstances which warrant the reconsideration of the matter or, (iv) as a matter of discretion, the justice of the matter requires that the applicant be allowed to revisit the matter. 

17                  In the applicant’s oral submissions reliance was placed upon the second of these exceptions to the general principle, namely, that there has been a material change in circumstances.  However, the affidavit evidence on behalf of the applicant, much of which is not able to be treated as rising above the level of submission, indicates that the applicant appeared to rely upon all of the exceptions which Reeves J has identified.

18                  In terms of the suggested material change of circumstances, it seems to me that as the respondent has pointed out, the applicant is confronted by the fundamental difficulty that all of the evidence on which the applicant relies in order to support the claim that there has been a change of circumstances is evidence that was available to the applicant at all relevant times including at the time of the hearing of the application before Reeves J on 4 March 2010.  There is no new material in the sense of material that would not have been available to the applicant at that time. 

19                  Mr Stephens characterised the change of circumstances as the inability of his client to pay the judgment debt in the some of about $99,000 in circumstances where the evidence before Reeves J was that it would be a financial burden to do so but not that it could not be paid.  However: - (i) the application for a stay was filed in December 2009, (ii) the applicant agitated that application for urgent relief on 4 March 2010, and (iii) all of the relevant financial information was available to the applicant on 4 March 2010.  Accordingly, it cannot be said that there has been new evidence or a change of circumstances.  At its highest what seems to have happened is that the applicant was not ready to proceed with its own application on 4 March 2010.  Having failed in that application, the applicant now seeks another opportunity to put additional material before the Court, being material which was always available to the applicant and within its power to adduce.  I do not see any of these circumstances as constituting new material, new evidence, a material change in circumstances or exceptional circumstances.

20                  The affidavit evidence on which the applicant relies raises numerous concerns the applicant has about the way in which the matter came before and was dealt with by Reeves J.  However, the applicant had legal representation at the time.  Mr Stephens of counsel appeared on behalf of the applicant before Reeves J.  Mr Stephens sought and was granted an adjournment of the application between 10.15am and 2.15pm in order to obtain instructions.  He then made another adjournment application on the basis that his instructing solicitor had been unable to prepare written submissions and he would have to proceed on the basis of oral submissions.  Reeves J considered that that was an insufficient reason to grant a further adjournment of the application.  It seems to me that much of the material in the applicant’s affidavits takes issue with Reeves J’s decision, but this application cannot be used as the vehicle for any such complaint.  The applicant’s concerns also do not alter the fact that this is a second application for precisely the same relief which the applicants sought from Reeves J, but which Reeves J declined to grant. 

21                  In my view, this application engages the principles of abuse of process.  In the circumstances of this case it is an abuse of process for the applicant to seek precisely the same relief that it sought before Reeves J but did not obtain, presumably because of the inadequacy of its evidence at that time (and noting that it was always within the applicant’s control to rely upon whatever evidence it had available to it).  I am satisfied, therefore, that none of the circumstances identified by Goldberg J in Dawson Nominees are applicable in the present case.  It follows, in my view, that it cannot be said that as a matter of discretion the justice of the matter requires that the applicant be allowed to revisit this matter.  In fact, the justice of the matter demands that the applicant not be permitted to re-agitate precisely the same application which it has already had an opportunity to have heard and determined, and where it took that opportunity and (as it turned out) failed.  For this reason, I consider that the notice of motion filed 31 March 2010 must be dismissed and I so order.

Associate:

Dated:         20 April 2010