Federal Court of Australia

Avant-Garde Logistics Solutions Pty Ltd v Productreview.com.au Pty Ltd [2022] FCA 484

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application of 18 February 2022 be dismissed.

2.    The applicant shall pay the respondent’s costs of and associated with that interlocutory application in the sum of $3,000.00.

3.    The applicant shall pay the respondent’s costs of and associated with the matter (except insofar as concerns aspects of it that are separately the subject of existing costs orders, which shall remain binding); and shall do so in a sum to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-Costs).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

SNADEN J:

1    On 18 February 2022, after the latest of an excessive number of case management hearings that this matter has required, the court made orders herein concerning the service by the applicant of a draft amended statement of claim. In the event that the applicant defaulted on that front, the orders were framed so as to effect, by self-execution, the dismissal of its originating application.

2    Not long prior to the hearing that preceded the making of those orders, the applicant filed an interlocutory application. It had not been served upon the respondent by the time that the hearing of 18 February commenced or, in any event, the respondent had not had a proper opportunity to consider it; and, accordingly, I declined to hear it. It was, instead, adjourned for hearing on a date to be fixed.

3    Thereafter, the deadline by which the applicant was to serve its draft amended statement of claim in compliance with the orders made on that occasion came and went. No draft document was served and, accordingly, the matter was automatically dismissed. That dismissal took effect on Friday, 4 March 2022 pursuant to Rules 5.21 and 5.32 of the Federal Court Rules.

4    Thereafter, the applicant contacted my chambers and indicated that it wished to press for the relief that it sought by its interlocutory application of 18 February 2022. It is to that application—and to the hearing that the court entertained in respect of it on 27 April 2022—that these reasons relate.

5    By that interlocutory application of 18 February, the applicant seeks orders to the following effect:

(1)    the court release the complete audio recordings for all the hearings in the current proceeding;

(2)    the court stay all orders by Wheelahan J in the proceeding;

(3)    the court advise the parties what information it has released to the Victorian Legal Services Board and on which date;

(4)    the court allow the joinder of Mr Kuksal too as a plaintiff to the proceeding;

(5)    the court set a date for the lodgement of the amended statement of claim.

6    Three affidavits were read in support of the interlocutory application. The first was an affidavit of Shivesh Kuksal, affirmed on 30 November 2021. The second was affirmed by Ms Maria DiGregorio on 18 February 2022. The third was affirmed by Mr Alberto Saldano on 7 March 2022. It is unnecessary that I should recite in any detail the content of those affidavits. I do, however, note the reference in the latter to the applicant’s application for reinstatement of its matter. There is no such application and the remainder of these reasons concern only the interlocutory application of 18 February 2022.

7    The relief that is sought by means of that interlocutory application is wholly inutile, inappropriate or both; and, in my view, self-evidently so. Given that, I intend to deal only in the briefest terms with each species of relief that is sought.

8    The first concerns the “complete audio recordings” of the great many case management hearings that the matter spawned prior to its dismissal. That appears to be sought because of criticisms made by the former docket judge about the manner in which the applicant’s case had been prosecuted (and in aid of what seems to be the applicant’s contention—or, perhaps, that of its lawyers—that those criticisms were unfair or otherwise inappropriate). I have no intention of indulging that course. The current proceeding is no more. Nothing can be gained from granting the relief that is sought. It will not be granted.

9    The second species of relief seeks to stay “all orders made by Wheelahan J”. Nothing close to resembling a coherent contention in favour of that course has been made, neither in the affidavit material with which the court has been burdened, nor the oral submissions that were made at the hearing of 27 April 2022. Again, the present matter is no longer extant. There is no utility in staying orders made in a proceeding that is no more. The applicant did not articulate anything that inclines me to the contrary view.

10    The third species of relief concerns, or at least appears to concern, an order that Wheelahan J made on 16 November 2021. For reasons that need not here be expanded upon, his Honour was minded then to require that the District Registrar or his delegate provide to the Victorian Legal Services Commissioner (the “VLSC”) copies of identified documents. For reasons not apparent, the applicant now seeks orders requiring that the court give it “advice” about what has been provided to the VLSC. That will not be happening. Even were it apparent how such an order might be framed—and, to be clear, it is not—it is not for the court to provide advice to litigants, particularly not in matters which are no longer extant.

11    Although it is anything but clear, the affidavit material filed in support of the interlocutory application alludes to the existence or planned existence of proceedings that are to be brought, perhaps by the applicant but, more obviously, by its lawyers, against the Victorian Legal Services Board. The suggestion—again, anything but clear—seems to be that the “advice” that is now sought might assist in the prosecution of, or otherwise relate in some way to, that proceeding. Whether it might or not is of no concern to this court. The relief that is sought is patently inappropriate and will not be granted.

12    The fourth and fifth species of relief proceed upon the basis that the matter remains on foot. It does not. In fairness, those orders were foreshadowed at a time when it was extant. Quite properly, the applicant no longer presses for those species of relief.

13    It follows that the interlocutory application of 18 February 2022 will be dismissed. The respondent seeks an order requiring that the applicant pay its cost of and pertaining to that application and fixed in the sum of $3000.00. After hearing submissions from both sides, I am satisfied that that amount is reasonable in the circumstances—indeed, it is generous—and I will make an order to that effect.

14    The respondent also seeks an order requiring that the applicant pay its costs in relation to the matter more broadly. It seeks that those costs be fixed in the sum of $10,000.00 and it read an affidavit of its solicitor, Ms Munsie, in support of that course. That affidavit explains the costs to which the respondent has been put over the course of the litigation. Given that the matter now stands dismissed, there is no reason why the respondent, the successful litigant, should not have the benefit of a costs order. Whether that order should be fixed in the sum identified, though, is not a matter upon which the court should presently decide. Ms Munsie’s affidavit was served only shortly prior to the hearing of 27 April 2022 and the applicant has not had an opportunity to digest its content. I do not consider that it is appropriate to make a fixed-sum costs order in the absence of it having had that opportunity. Instead, there will be an order that the applicant pay the respondent’s costs of and associated with the matter, or with those aspects of it that are not separately the subject of existing costs orders, in an amount to be assessed if not agreed.

Associate:

Dated:    27 April 2022