FEDERAL COURT OF AUSTRALIA

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd

[2010] FCA 1404

THE COURT ORDERS THAT:

1.    The notice of motion dated 19 November 2010 be dismissed.

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    On 11 November 2010, a taxing officer of this Court issued a certificate pursuant to O 62 r 46(3)(ca) of the Federal Court Rules to the effect that the costs of the respondent and cross-claimant, Hamilton Pharmaceutical Pty Ltd (“Hamilton”) as between party and party, payable by the applicant and first cross-respondent, Australian Medic-Care Co Ltd (“Australian Medic-Care”) were deemed to be $356,322.60.

2    On 19 November 2010, Australian Medic-Care issued a notice of motion in which it sought the following orders:

1.    The Certificate of Taxation dated 11th November 2010 issued in this action be set aside forthwith;

2.    Leave be granted to the Applicant/First Cross-Respondent to file and serve a notice of objection to the estimate of the costs within 21 days from the date of the Order to be made herein; and

3.    There be no order as to the costs of this application.

3    A director of Australian Medic-Care, Dr Kenneth Kin Wah Keung, sought leave to appear on behalf of the company. He told me that he is one of four directors of the company. He is the second cross-respondent in the proceeding. Dr Keung and Australian Medic-Care had previously been represented by a firm of solicitors. However, on 19 February 2010 they filed a Notice of Appearance wherein they stated that they were acting for themselves (Dr Keung asserted that the company was appearing by him) and gave an address for service being an address in North Epping, New South Wales (“the address for service”). I granted Dr Keung leave to appear on behalf of the company. Hamilton did not object to a grant of leave.

4    The background to the notice of motion is as follows. On 29 July 2010, Hamilton lodged a bill of costs with the Court. The bill of costs was served on Australian Medic-Care. On 27 September 2010, the taxing officer sent to Dr Keung at the address for service and to the solicitors for Hamilton a letter advising them of the following:

1.    that the estimate made of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue was $356,322.60. That estimate was made under Order 62 paragraph 46(3)(a). Notification of the estimate was given under Order 62 paragraph 46(3)(b);

2.    the provisions of Order 62 subrule 46(3);

3.    that if a notice of objection was not filed and served the party filing the bill could, subject to proof of service, request the issue of a certificate of taxation; and

4.    of the terms of the certificate of taxation which would issue in those circumstances.

5    A Notice of Objection was not filed and served by Australian Medic-Care and, on 1 November 2010, Hamilton wrote to the taxing officer requesting that a certificate of taxation be issued. As I have said, on 11 November 2010 that was done.

6    On 12 November 2010, Dr Keung wrote to the Registry of this Court claiming that the company did not receive the estimate “through mail or E-mail”.

7    On 15 November 2010, Dr Keung wrote to the taxing officer claiming that the estimate did not come to his attention during the relevant period. He made the following points:

1.    During the previous six months he had spent most of his time in Hong Kong.

2.    He relied on his wife to collect letters for him. She had been in Hong Kong from 12 September 2010 to 23 October 2010. The letter was not received by Dr Keung.

3.    Since February 2010, the Court has been in contact with Dr Keung and Australian Medic-Care and that contact has been by email first, followed by mail.

4.    Australian Medic-Care would have objected to the estimate, and the solicitors for Hamilton were aware of this fact.

5.    Hamilton will suffer no prejudice if the certificate of taxation is set aside.

8    In oral submissions before me, Dr Keung outlined a number of arguments he would put against various claims for costs made by Hamilton. Counsel for Hamilton said that he did not dispute that Dr Keung would have “something to say on the merits”. His point was that Australian Medic-Care did not overcome the first hurdle in terms of the application for an order setting aside the certificate of taxation, namely, that it had not received the notice of the estimate (O 62 r 46(3)(cb)).

9    It is clear that Australian Medic-Care may only apply for the order it seeks if it had not received the notice of the estimate (O 62 r 46(3)(cb) and see Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2008] FCA 518). It is also clear that it carries the onus of establishing that the notice was not received. There is no evidence that the notice of estimate was not received at Australian Medic-Care’s address for service. In fact the probability is that it was. Service has been effected in accordance with the Federal Court Rules (see Order 7) and Australian Medic-Care has failed to establish that it did not receive the notice of estimate. Under the relevant rule I do not have a discretion to make the order which Australian Medic-Care seeks. In those circumstances, the notice of motion must be dismissed.

Associate:

Dated:    15 December 2010