FEDERAL COURT OF AUSTRALIA Makucha v Sovereign Capital Limited [2005] FCA 803 PRACTICE AND PROCEDURE – application for summary dismissal – failure to comply with orders of the Court – proceeding dismissed PAUL MAKUCHA v SOVEREIGN CAPITAL LIMITED (ACN 084 821 218), PRESLANDS FINANCE PTY LIMITED (ACN 069 851 449), NOTHINTOOHARD PTY LIMITED (ACN 080 711 897) (IN LIQUIDATION) (RECEIVER APPOINTED), ADAM SHEPARD, RONALD JOHN DEAN‑WILLCOCKS AND COLLIERS INTERNATIONAL (NSW) PTY LIMITED (ACN 001 401 681) NSD 1653 of 2004 BRANSON J 1 JUNE 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1653 of 2004 BETWEEN: PAUL MAKUCHA APPLICANT AND: SOVEREIGN CAPITAL LIMITED (ACN 084 821 218) FIRST RESPONDENT PRESLANDS FINANCE PTY LIMITED (ACN 069 851 449) SECOND RESPONDENT NOTHINTOOHARD PTY LIMITED (ACN 080 711 897) (IN LIQUIDATION) (RECEIVER APPOINTED) THIRD RESPONDENT ADAM SHEPARD FOURTH RESPONDENT RONALD JOHN DEAN‑WILLCOCKS FIFTH RESPONDENT COLLIERS INTERNATIONAL (NSW) PTY LIMITED (ACN 001 401 681 SIXTH RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 1 JUNE 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be wholly dismissed. 2. To the extent that it is necessary to so order, order 3 of the orders made by Emmett J on 23 November 2004 have no further force and effect. 3. To the extent that it is necessary to so order, the sixth respondent be released from the voluntary undertaking given to this Court on 23 November 2004. 4. The applicant pay the costs of the sixth respondent incurred from 23 November 2004. 5. The applicant pay the costs of the first to fifth respondents incurred from 9 December 2004. 6. No respondent may tax his or its costs referred to in par 4 or 5 hereof, as the case may be, before the expiry of 30 days from the date of these orders. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1653 of 2004 BETWEEN: PAUL MAKUCHA APPLICANT AND: SOVEREIGN CAPITAL LIMITED (ACN 084 821 218) FIRST RESPONDENT PRESLANDS FINANCE PTY LIMITED (ACN 069 851 449) SECOND RESPONDENT NOTHINTOOHARD PTY LIMITED (ACN 080 711 897) (IN LIQUIDATION) (RECEIVER APPOINTED) THIRD RESPONDENT ADAM SHEPARD FOURTH RESPONDENT RONALD JOHN DEAN‑WILLCOCKS FIFTH RESPONDENT COLLIERS INTERNATIONAL (NSW) PTY LIMITED (ACN 001 401 681 SIXTH RESPONDENT JUDGE: BRANSON J DATE: 1 JUNE 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 It is necessary for me to rule on an application made by certain of the respondents that this proceeding be dismissed pursuant to O 35A r 3 of the Federal Court Rules. To determine whether it is appropriate for me to exercise the discretion vested in the Court by that rule, the history of the proceeding must be reviewed. 2 On 12 November 2004 Emmett J granted the applicant leave to file and serve an application and a statement of claim returnable in the first instance before the duty judge on 17 November 2004. His Honour abridged the time for service accordingly. 3 The proceeding came before Conti J on 17 November 2004 and was adjourned. On 23 November 2004 the matter came before Emmett J again. His Honour gave the applicant leave to file a notice of motion returnable instanter. On the applicant giving the usual undertaking as to damages, his Honour noted that the sixth respondent by its solicitor gave an undertaking that it would not, until further order, copy, reproduce or adapt any part of certain material in which the applicant claimed copyright. His Honour, on the same undertaking of the applicant, ordered the first respondent to be restrained from copying, reproducing or adapting any part of that material. 4 On 8 December 2004 Tamberlin J ordered, amongst other things, that the applicant file and serve an amended statement of claim on or before 21 December 2004. The applicant did not comply with this order. However, he filed an amended statement of claim on 18 January 2005. 5 The matter first came before me as docket judge on 19 April 2005. On that day the applicant indicated that he did not wish to place reliance on the amended statement of claim filed by him on 18 January 2005. As the amended statement of claim had been filed outside the time limit fixed by Tamberlin J and was not a pleading on which the applicant wished to rely, I ordered that it be disregarded as a pleading. I gave the applicant leave to file and serve an amended statement of claim by 30 May 2005 but not thereafter without leave. 6 This additional period of nearly six weeks within which the applicant could file and serve an amended statement of claim was fixed over the objection of at least one party and was intended to give the applicant ample time to do what he considered was necessary to prepare a statement of claim adequate to plead the case that he wishes to advance in the Court. The original statement of claim is not suitable for that purpose. The unlikelihood that I would agree to further extending the time within which the applicant could file and serve an amended statement of claim was made clear to the applicant on 19 April 2005 and is, indeed, reflected in the terms of my order. The additional period of six weeks was, of course, in addition to the nearly two weeks granted to the applicant by Tamberlin J for the same purpose and the considerable time that passed thereafter until the matter came before me on 19 April 2005. 7 The applicant did not file and serve an amended statement of claim by 30 May 2005. Rather, he now seeks a further extension of four weeks within which to file and serve an amended statement of claim. 8 This proceeding, as I have mentioned, was instituted as an urgent matter on 12 November 2004. Shortly thereafter an undertaking was given by the sixth respondent and an interlocutory injunction was made against the first respondent. More than five months have passed since these steps were taken. Yet the proceeding has not even advanced to the stage where a statement of claim upon which the applicant wishes to rely has been filed. Moreover, there are respondent parties to the proceeding whose continuing interest in the proceeding, assuming that they once had an interest, is far from clear. Legal costs are no doubt continuing to be incurred by most, if not all, of the respondents. 9 I recognise that the applicant has the disadvantage of being a litigant in person – although I note that for a period of time early in the life of the proceeding he apparently briefed a barrister directly. Nonetheless the applicant has had more than a fair opportunity to file and serve a statement of claim that identifies the cause or causes of action upon which he relies. I am not satisfied that the applicant is endeavouring to co-operate with the Court so as to enable the claims that he wishes to advance against the respondents to be litigated in a timely and efficient way. 10 In my view, the appropriate course in the circumstances is to dismiss the proceeding pursuant to O 35A r 3 (1)(a) of the Federal Court Rules. As an order of this kind is interlocutory the applicant may later apply to the Court under O 35 r 7(2) to have the order set aside. I indicate, however, that the Court is unlikely to exercise its discretion to set aside the order unless the applicant, at the time that he applies to have the order set aside, has a solicitor acting on his behalf who is willing to become the solicitor on the record in the proceeding and who has the skills and experience necessary to conduct the proceeding in an appropriate way. 11 It will be ordered that the proceeding be wholly dismissed. 12 As a consequence of the proceeding being dismissed the interlocutory order made by Emmett J on 23 November 2004 will have no further operation. Similarly, the undertaking given to his Honour on that day by the sixth respondent will cease to bind the sixth respondent. Nonetheless, so as to avoid any possibility of misunderstanding, I will make orders that reflect this position. 13 In the circumstances the applicant would ordinarily be ordered to pay the respondents' costs of the proceeding. However, having regard to all of the circumstances, I have decided to make costs orders that are somewhat less favourable to the respondents. The applicant will be ordered to pay the costs of the sixth respondent incurred from 23 November 2004, the date upon which it gave the undertaking referred to above. The applicant will be ordered to pay the costs of all other respondents incurred from 9 December 2004. It will be ordered that no respondent is free to tax his or its costs earlier than 30 days from the date of today's orders. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 16 June 2005 The Applicant appeared in person by telephone Counsel for the First Respondent: M W Young Solicitor for the First Respondent: Bransgroves Solicitors Advocate for the Fourth and Fifth Respondents: M Ryckmans Solicitor for the Fourth and Fifth Respondents: Abbott Tout Advocate for the Sixth Respondent: A Sharpe Advocate for the Sixth Respondent: Phillips Fox Date of Hearing: 1 June 2005 Date of Judgment: 1 June 2005