Emmerton, R.A. v West, G.B. & Anor [1995] FCA 320

LIMITED DISTRIBUTION CATCHWORDS PRACTICE and PROCEDURE - application for award of interim sum to prevent further loss and damages pending outcome of proceeding - jurisdiction - no discussion of principles. PRACTICE and PROCEDURE - application to strike out application and statement of claim - whether pleadings disclose a cause of action - no discussion of principles. ROY ALAN EMMERTON v GARRY BRUCE WEST & ANTHONY RAYMOND LAUER No NG 186 of 1995 Tamberlin J Sydney 4 May 1995

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 186 of 1995 GENERAL DIVISION ) BETWEEN: ROY ALAN EMMERTON Applicant AND: GARRY BRUCE WEST & ANTHONY RAYMOND LAUER Respondents CORAM: TAMBERLIN J PLACE: SYDNEY DATED: MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application and statement of claim be dismissed. 2. The applicant pay the costs of the respondents of this proceeding to date. 3. There be no order as to the costs of the earlier proceedings (NG 80/95) NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 186 of 1995 GENERAL DIVISION ) BETWEEN: ROY ALAN EMMERTON Applicant AND: GARRY BRUCE WEST & ANTHONY RAYMOND LAUER Respondents CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 4 MAY 1995 REASONS FOR JUDGMENT In this matter the subject for consideration initially raised is a notice of motion filed on 28 March 1995 seeking orders that the respondents pay to the applicant an interim sum to prevent further loss and damages and seeking further orders or directions. The notice of motion arises out of a statement of claim lodged in proceedings number NG 186 of 1995. These proceedings in turn are new proceedings which were instituted after orders made by me on 17 March 1995 striking out the statement of claim filed in proceedings number NG 80 of 1995 on the ground that it did not disclose any cause of action. I am satisfied having examined the application and the statement of claim in the present proceedings that neither the application nor the statement of claim discloses any cause of action and accordingly the proceedings, that is to say, both the application and the statement of claim should be struck out. As a result of this, it is strictly not necessary to consider the notice of motion seeking an order that an interim sum be paid to the applicant. The concern of the applicant to obtain such an order is that collateral proceedings are in the process of determination in relation to certain property owned by the applicant and in substance he is seeking an interim award of a sum of money as damages pending the outcome of this proceeding before me in order to assist him in negotiations with a mortgagee or mortgagees in relation to that property. In my opinion this court has no jurisdiction in the present matter to make an interim award of damages and there must be grave doubts whether even if such a jurisdiction did exist that as a matter of discretion a court would be likely to allow such an application in the circumstances of the present case. I should add that on two occasions, including the first judgment given by me on 17 March 1995 and at a hearing one week ago in this court, I did point out to the applicant in the proceedings that it may be possible for him to take advantage of pro bono legal assistance which has been publicly offered by the Bar Association and the Law Society of this State. I am informed at the hearing this morning that it may be some months before any such assistance could be rendered by the Law Society. I do not think this is a proper case in which to stand over the proceedings pending any arrangements that may possibly be made in that respect. Accordingly, in the circumstances, the appropriate orders are first, that the application in this matter be dismissed and second, that the statement of claim be dismissed and finally that the applicant pay the costs of the respondents of this proceeding to date. In this matter an application has been made for the costs of the strike-out application in the earlier proceedings. I am not prepared, in the exercise of my discretion, to make a costs order against the applicant in respect of those proceedings. It is appropriate in the circumstances of the present case, in my view, that Mr Emmerton who is unrepresented should have been given an opportunity to present his case on that occasion and an opportunity to amend without being put in peril in relation to costs and accordingly I do not make an order in respect of the costs of those earlier proceedings. I certify that this and the preceding two pages (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 4 May 1995 For Applicant: Mr R A Emmerton appeared in person. Counsel for Respondent: Mr T H Barrett Solicitor for Respondent: State Crown Solicitor Date of Hearing: 4 May 1995 Date Judgment Delivered: 4 May 1995