FEDERAL COURT OF AUSTRALIA Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd [2001] FCA 504 TIRANGO NOMINEES PTY LTD, PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN v DAIRY VALE FOODS LIMITED AND DAIRY VALE FOODS LIMITED v TIRANGO NOMINEES PTY LTD, PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN VG 123 OF 1997 MANSFIELD J 1 MAY 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY VG123 OF 1997 BETWEEN: TIRANGO NOMINEES PTY LTD (ACN 006 777 537), PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN APPLICANTS AND: DAIRY VALE FOODS LIMITED RESPONDENT BETWEEN: DAIRY VALE FOODS LIMITED CROSS-CLAIMANT AND: TIRANGO NOMINEES PTY LTD (ACN 006 777 537), PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN CROSS-RESPONDENTS JUDGE: MANSFIELD J DATE OF ORDER: 1 MAY 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicants pay to the respondent costs of the application to be taxed. 2. The cross-respondents pay to the cross-applicant costs of the cross-application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY VG123 OF 1997 BETWEEN: TIRANGO NOMINEES PTY LTD (ACN 006 777 537), PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN APPLICANTS AND: DAIRY VALE FOODS LIMITED RESPONDENT BETWEEN: DAIRY VALE FOODS LIMITED CROSS-CLAIMANT AND: TIRANGO NOMINEES PTY LTD (ACN 006 777 537), PAMELA IRENE WILLIAMS AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF ALLEN JAMES WILLIAMS AND PAULINE ANNE STOCKMAN CROSS-RESPONDENTS JUDGE: MANSFIELD J DATE: 1 MAY 2001 PLACE: ADELAIDE EX TEMPORE REASONS FOR JUDGMENT 1 In this matter I gave judgment on 15 September 1999. I dismissed the claim of the applicants against the respondent. I gave judgment on the cross-application against the cross-respondent, Tirango Nominees Pty Ltd, and I dismissed the claim on the cross-application against the cross-respondents, Pamela Williams (as Personal Representative of the Estate of Allen James Williams) and Pauline Anne Stockman. The parties each appealed to the Full Court against the decisions which I then announced. 2 On 30 October 2000 the Full Court gave judgment on those various appeals. The appeal against the dismissal of the applicants' claims was unsuccessful. The appeal against the decisions on the cross-application were partly successful. The Full Court upheld the decision that I had made giving judgment for the cross-applicant against Tirango Nominees Pty Ltd, one of the cross-respondents, but it reversed the decision I had made dismissing that cross-application against the other two cross-respondents. It entered judgment on the cross-application in favour of the cross-applicant against the additional cross-respondents - that is, against Pamela Williams (as Personal Representative of the Estate of Allen James Williams) and Pauline Anne Stockman. The result is that the respondent on the application succeeded entirely in resisting the claim and, as cross-applicant, succeeded entirely on its cross-application. 3 At the time I delivered judgment I did not deal with the issue of costs. I reserved costs for further argument in anticipation that the parties may wish to make submissions on those matters rather than that costs should simply follow the event. As it happened the parties did not, at that time, exercise the right to apply to have the question of costs of the trial resolved. Instead they followed the appeal procedure to which I have referred. When the Full Court gave judgment on the appeals, it dealt with the costs of the appeals, but did not deal with the costs of the trial. The result is that the costs of the trial are still reserved and have not yet been dealt with. 4 Solicitors for the respondent and cross-applicant now seek an order for costs of the trial against each of the applicants and cross-respondents. In the absence of any particular consideration which would warrant the matter being treated other than in the ordinary course, in my view it is appropriate that the costs of the trial should follow the event. The event is now that the application was unsuccessful, and the cross-application was successful in its entirety. 5 I therefore propose to order and I order that: 1. The applicants pay to the respondent costs of the application to be taxed. 2. The cross-respondents pay to the cross-applicant costs of the cross-application to be taxed. 6 There is one additional matter about which I should make some observation. This application to resolve the issue of costs was made by solicitors for the respondent and cross-applicant upon a request that the matter be relisted for the hearing of argument as to costs. In the normal way, my Associate contacted solicitors for the applicants and cross-respondents, as well as solicitors for the respondent and cross-applicant, indicating the times when the Court might be available to hear that application. 7 The solicitors for the applicants and cross-respondents, rather than respond to that invitation to fix a date convenient to them, simply filed a notice of ceasing to act on behalf of the first and third applicants and first and third cross-respondents. According to the record, they are still solicitors for the second applicant and the second cross-respondent. They have been notified of today's hearing and have not attended. I have called in the precincts of the court each of the applicants and cross-respondents. There is no appearance. In those circumstances I am satisfied that it is appropriate to proceed to make the orders I have made against the second applicant and second cross-respondent Pamela Williams (as the Personal Representative of the Estate of Allen James Williams). 8 I am also satisfied that it is appropriate to proceed today to make the orders I have made against the other applicants and cross-respondents. The solicitors acting for them are, in my view, still properly solicitors on the record for them. They have not complied with O 45 r 7(3) by filing and serving an affidavit of compliance with O 45 r 7(2), to the effect that they have served notice of their intention to cease to act upon the persons who they assert to have been their former clients. They have not sought the leave of the Court to cease to act. In my view they are therefore still properly solicitors on the record for all applicants and cross-respondent. They have chosen today not to attend. 9 For the sake of the record I indicate that my Associate has also written to Tirango Nominees Pty Ltd at its current registered address by letter dated 27 April 2001 and posted on that date, advising of today's hearing, and he has also been informed in a telephone conversation with the third applicant and third cross-respondent Pauline Anne Stockman that she did not intend to appear on the hearing today. Even if solicitors on the record for those applicants and cross-respondents are no longer acting for them, I am satisfied that each of those applicants and cross-respondents has been informed of today's hearing and has chosen not to attend. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 1 May 2001 Solicitor for the Applicants: Slater & Gordon Counsel for the Respondent: Mr T Mellor Solicitor for the Respondent: Mellor Olsson Date of Hearing: 1 May 2001 Date of Judgment: 1 May 2001