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Rangott v Pilor Pty Ltd [2006] FCA 113 (10 January 2006)

Last Updated: 21 February 2006

FEDERAL COURT OF AUSTRALIA

Rangott v Pilor Pty Ltd [2006] FCA 113

WILLIAM BALFOUR RANGOTT v PILOR PTY LIMITED, JANELLE ROCHE, PIA SERVICES PTY LTD, MAYHEM GAMES PTY LTD, FAIRCHROME PTY LTD, MANO MANAGEMENT PTY LTD, MARK & NOORAINI BLUMER, IPAQ PTY LTD, KEN OWEN, SANETH WEERATNE, CRDT PTY LTD AND AAR INVESTMENTS PTY LTD

QUD 137 of 2005

DOWSETT J
10 JANUARY 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 137 OF 2005

BETWEEN:	WILLIAM BALFOUR RANGOTT APPLICANT
AND:	PILOR PTY LIMITED FIRST RESPONDENT JANELLE ROCHE SECOND RESPONDENT PIA SERVICES PTY LTD THIRD RESPONDENT MAYHEM GAMES PTY LTD FOURTH RESPONDENT FAIRCHROME PTY LTD FIFTH RESPONDENT MANO MANAGEMENT PTY LTD SIXTH RESPONDENT MARK & NOORAINI BLUMER SEVENTH RESPONDENT IPAQ PTY LTD EIGHTH RESPONDENT KEN OWEN NINTH RESPONDENT SANETH WEERATNE TENTH RESPONDENT CRDT PTY LTD ELEVENTH RESPONDENT AAR INVESTMENTS PTY LTD TWELFTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	10 JANUARY 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

(1) The applicant file and serve his amended application and statement of claim by 4.00 pm on 20 January 2006, failing which the proceedings against the first, second, third, fourth, fifth, eighth and eleventh respondents will be dismissed.

(2) In the event that the applicant fails to file and serve his amended application and statement of claim by 4.00 pm on 20 January 2006 pursuant to order 1 hereof, the applicant is to pay the costs of the first, second, third, fourth, fifth, eighth and eleventh respondents of and incidental to the proceedings, to be taxed on a solicitor and own client basis.

(3) The applicant pay the first, second, third, fourth, fifth, eighth and eleventh respondents’ costs of and incidental to the hearing on 10 January 2006 on a solicitor and own client basis and that such costs be paid forthwith, notwithstanding that the proceedings are not concluded for the purposes of Order 62 rule 3(2) of the Federal Court Rules.

(4) The applicant pay the costs of the first, second and third respondents of and incidental to the motion filed on 14 October 2005 on a solicitor and own client basis and that such costs be paid forthwith, notwithstanding that the proceedings are not concluded for the purposes of Order 62 rule 3(2) of the Federal Court Rules.

(5) That the applicant pay the costs of the fourth, fifth, eighth and eleventh respondents of and incidental to their motion filed on 18 August 2005 on a solicitor and own client basis and that such costs be paid forthwith, notwithstanding that the proceedings are not concluded for the purposes of Order 62 rule 3(2) of the Federal Court Rules.

(6) The following orders of Federal Magistrate Driver be discharged, namely: par 1 of the order made on 21 July 2004, par 7 of the order made on 30 August 2004, par 2 of the order made on 5 October 2004 and par 7 of the order made on 14 December 2004.

(7) That the order contained in par 6 hereof concerning discharge of the orders of Federal Magistrate Driver be suspended until 4.00 pm on 12 January 2006 or other earlier order.

(8) The parties have liberty to apply.

(9) The trial dates for this matter, namely the weeks commencing 6 and 13 March 2006, be vacated.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 137 OF 2005

BETWEEN:

WILLIAM BALFOUR RANGOTT
APPLICANT

AND:

PILOR PTY LIMITED
FIRST RESPONDENT

JANELLE ROCHE
SECOND RESPONDENT

PIA SERVICES PTY LTD
THIRD RESPONDENT

MAYHEM GAMES PTY LTD
FOURTH RESPONDENT

FAIRCHROME PTY LTD
FIFTH RESPONDENT

MANO MANAGEMENT PTY LTD
SIXTH RESPONDENT

MARK & NOORAINI BLUMER
SEVENTH RESPONDENT

IPAQ PTY LTD
EIGHTH RESPONDENT

KEN OWEN
NINTH RESPONDENT

SANETH WEERATNE
TENTH RESPONDENT

CRDT PTY LTD
ELEVENTH RESPONDENT

AAR INVESTMENTS PTY LTD
TWELFTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	10 JANUARY 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 There has been a history of extreme delay in this matter. In October last year I ordered delivery of an amended statement of claim by 21 November. That has not been done. Such explanation as has been tendered is completely unsatisfactory and, on its face, suggests a complete disregard by the applicant’s legal advisers for the orders of the court. I say ‘on its face’ because it would not be appropriate for me to form any view as to whether or not the apportionment of blame which is implicit in the material is fair.

2 No satisfactory explanation has been offered for the failure to file a statement of claim by 21 November, which date was more or less negotiated in the course of the last hearing. Although the Court was approached with regard to a possible extension, no application for an extension has been made. I am told that counsel have gone on holidays, leaving the matter outstanding, notwithstanding the fact that by the end of the legal year in December, the applicant was already substantially in default.

3 I am, however, willing to give the applicant one last chance to demonstrate his good faith in this matter. I will allow him until the 20th of this month to file his amended statement of claim. I realise that in order to comply, he may have to change his counsel. It is too late to take into account niceties such as that.

4 In the face of the applicant’s demonstrated attitude to the conduct of these proceedings, I must minimize the prejudice to the respondents. That relates to three matters. One is that the trial has been set down for ten days in March. The second is the question of outstanding costs. The third is the interlocutory relief presently outstanding against the first, second and third respondents.

5 Insofar as concerns the trial dates, the parties are agreed that they should be vacated. I do not accept that outcome as being in any sense desirable. Two weeks have been set aside in March for the matter. It is almost certainly too late now to set down other matters. A two-week block of time is a very valuable resource from the Court’s point of view. It cannot be readily salvaged when, as the result of default by one or other of the parties, it can no longer be utilised. However, in order to do justice between the parties in this case, I have no choice. The trial dates will be vacated.

6 As to the question of costs, I have indicated that I intend to allow the applicant until 20 January to deliver a statement of claim. That will be on terms. In the event that he fails to do so, the proceedings will stand dismissed. I should indicate how the costs of the action will be disposed of in that event. The respondents propose that in the event that the statement of claim is not delivered in accordance with the order, the applicant should pay the respondents’ costs on a solicitor and own client basis. If the proceedings are disposed of in that way, the applicant should certainly pay the costs. The only question is as to the basis of taxation. I am usually reluctant to order taxation on a solicitor and client basis, but given the past inability of the applicant to formulate his claim, and assuming that a statement of claim has not been delivered by 20 January, it would be a reasonable inference that the claim was never capable of successful prosecution. In those circumstances it would be appropriate to order that costs be taxed on a solicitor and own client basis. I will therefore do so.

7 I come to the costs of the hearing today. There can, I think, be little doubt that the applicant should pay those costs. In view of the continuing delay and the attitude demonstrated in the applicant’s material, it is appropriate that they be taxed on a solicitor and own client basis. I order accordingly. That leaves the costs of the hearing in October when the previous statement of claim was, in effect, struck out, pursuant to motions filed by the first, second and third respondents on 14 October and by the fourth, fifth, eighth and eleventh respondents on 18 August. Given the continuing delay, it now seems appropriate that I dispose of those costs. The applicant should pay them.

8 With respect to the costs of the interlocutory proceedings, that is, of today and of the proceedings pursuant to the two motions, it is appropriate that they be paid immediately. The suspension of the obligation to pay costs payable pursuant to orders in interlocutory proceedings which is contained in the Federal Court Rules is, in my view, posited upon the assumption that the party in question prosecutes the proceedings with due diligence. Where that fails to occur, I see no reason why the indulgence should continue.

9 Thirdly, there is the question of the interlocutory relief. It relates to land and moneys in the hands of the first, second or third respondents and is designed to protect the availability of such assets in the event of a successful judgment in the action, that is a judgment in favour of the applicant. The interlocutory relief has now been in place for more than a year, in some cases, for almost 18 months. Interlocutory relief of that kind again posits an assumption that the party having the benefit of it will prosecute the action with due diligence. It is too easy for an applicant to obtain interlocutory relief and then to let the matter go to sleep. That has, at least in part, happened here.

10 In the circumstances the interlocutory relief should not remain in place. I am minded to dissolve the various orders. However it is not entirely clear to me that the applicant was given appropriate notice of the intention to move today for such dissolution, although it was a reasonable inference from the correspondence which passed between the parties. I can do substantial justice if I dissolve the various orders but suspend the operation of that dissolution order for a period of two days to enable the applicant to make application for further interlocutory relief in the event that he is so minded or so advised.

11 The orders will therefore be as follows: