Mitchell v Baruch & Anor [2009] FMCA 1129 (2 November 2009)

Last Updated: 18 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MITCHELL v BARUCH & ANOR

[2009] FMCA 1129

COPYRIGHT – Practice and procedure – discontinuance of proceedings – costs.

Applicant:

JUSTIN RICHARD MITCHELL

First Respondent:

RON BARUCH

Second Respondent:

LINKWIZZ PTY LTD

File Number:

SYG 2093 of 2009

Judgment of:

Emmett FM

Hearing date:

2 November 2009

Date of Last Submission:

2 November 2009

Delivered at:

Sydney

Delivered on:

2 November 2009

REPRESENTATION

The applicant appeared in person

No appearance by or on behalf of the respondents

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2093 of 2009

JUSTIN RICHARD MITCHELL

Applicant

And

RON BARUCH

First Respondent

LINKWIZZ PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The applicant seeks leave to file in Court a notice of discontinuance dated 30 October 2009 and signed by the applicant, in respect of his proceeding before this Court commenced by way of application, filed on 28 August 2009.
2. At the first return date before me on 21 September 2009, the applicant appeared in person. There was no appearance by or on behalf of either of the respondents. The applicant had not managed to effect service in accordance with the rules of the Court at that time and, at his request, the matter was stood over to 13 October 2009 to allow service to be affected.
3. On 13 October 2009, Mr Arnott of Arnotts Lawyers sought leave to file in Court a Notice of Appearance in respect of both respondents.
4. On that occasion, by consent, the matter was stood over for further directions until today to allow the parties an opportunity to explore resolution of the matter. No directions were made by the Court for the filing of a response.
5. It emerged during that directions hearing that the applicant in fact had a judgment debt against the respondents in respect of some work done.
6. In support of his application for leave to discontinue this morning, the applicant has tendered a copy of a letter from himself, dated 22 October 2009, to the respondents’ lawyer expressing his wish to discontinue his proceeding on the basis that each party pay its own costs.
7. By letter dated 26 October 2009, the respondents’ lawyers wrote to the applicant informing him that their instructions were not to consent to the discontinuance except on certain terms.
8. On 27 October 2009, the applicant wrote to the respondents’ lawyers rejecting the proposal by the respondents’ lawyers in their letter, dated 26 October 2009. The letter proposed that the amount of the default judgment would be reduced by the amount of the costs sought by the respondents.
9. The letters dated 22 October 2009, 26 October 2009 and 27 October 2009 together were marked Exhibit 1A.
10. The respondents were clearly aware of today’s scheduled directions hearing and, for whatever reason, have chosen not to attend.
11. In the circumstances, I propose to grant leave to the applicant to file a notice of discontinuance in the form of a document signed by the applicant, initialled by me and dated with today’s date, and I further make no order as to costs.
12. I direct the applicant to serve upon the respondents at the address provided by their lawyers in the Notice of Appearance; a copy of the notice of discontinuance; and, a copy of the Orders made today by the Court.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 17 November 2009