Ualesi v Expeditors International Pty Ltd [2005] FCA 33

FEDERAL COURT OF AUSTRALIA

Ualesi v Expeditors International Pty Ltd [2005] FCA 33

Practice and Procedure – misconceived and oppressive application to cross-vest proceedings in Local Court to Federal Court – indemnity costs order made against applicants ANASTASIA UALESI AND PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS v EXPEDITORS INTERNATIONAL PTY LTD NSD 1511 OF 2004 CONTI J 2 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1511 OF 2004

BETWEEN: ANASTASIA UALESI & PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS

APPLICANTS

AND: EXPEDITORS INTERNATIONAL PTY LTD

RESPONDENT

JUDGE: CONTI

DATE OF ORDER: 2 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicants to pay the respondent's costs of and incidental to the proceedings on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1511 OF 2004

BETWEEN: ANASTASIA UALESI & PETI J UALESI T/AS AUSTRALIAN EMPIRE IMPORTS

APPLICANTS

AND: EXPEDITORS INTERNATIONAL PTY LTD

RESPONDENT

JUDGE: CONTI

DATE: 2 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT AS TO COSTS 1 On 20 December 2004 I ordered that the application to cross-vest the subject of the proceedings be dismissed, and invited submissions as to whether or not indemnity costs of and incidental to the application should be ordered against the applicants. 2 The applicants and respondent respectively provided written submissions to the Court on 10 January 2005 upon that costs issue. In the case of the applicants, the same were provided under the signature of the second applicant, and in the case of the respondent, under the signature of its solicitor. Further written submissions in response were provided to the Court under the signature of the second applicant on 18 January 2005, which provoked a further response from the respondent's solicitor. 3 In summary, the solicitor for the respondent set out material which was submitted by him to 'indicate a wilful disregard of known facts or clearly established law'; moreover he submitted further that '… the applicants should not have brought the application'. In particular, the solicitor for the respondent pointed to the following matters inter alia: (i) my finding on 20 December 2004 as to an absence of any basis or foundation in law for the granting of the application; (ii) the extent of vagaries and dogmatic statements contained in the applicants' submissions, each being said to have been made without foundation; (iii) the oppressive nature of the bulk of the written material provided in purported support of the applicants' case; (iv) the entire failure of the applicants to make any effective or viable submission, in particular, as to how some 19 statutes, or a large number of case authorities, to which the Court was referred by the applicants, bore relevantly on the purported issues presented by the applicants, or otherwise supported their application to cross-vest; (v) my findings effectively as to the incomprehensible and confusing nature of the application to cross-vest, and of the matters referred to or raised in support thereof; and (vi) the evident extraordinary cost to which the respondent had been put to consider and address 'the masses of material purportedly relied upon by the applicants…'. 4 There is no sound reason for me to set out the applicants' lengthy responses, dominated as they were by irrelevancies and misconceptions, both as to facts and legal principles. The respondent's present application is in my opinion soundly based, essentially for the reasons I have outlined above. 5 I therefore order that the applicants bear the costs of the respondent of and incidental to application the subject of my reasons for judgment of 20 December 2004, and also of the respondent's costs application the subject of these reasons, on an indemnity basis. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.