Atkins v Master Builders Association of NSW [2006] FCA 142

FEDERAL COURT OF AUSTRALIA

Atkins v Master Builders Association of NSW [2006] FCA 142

KEITH RAYMOND ATKINS v

MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES NSD 965 OF 2005 LINDGREN J 17 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 965 OF 2005

BETWEEN: KEITH RAYMOND ATKINS

APPLICANT

AND: MASTER BUILDERS ASSOCIATION OF

NEW SOUTH WALES

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 17 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The proceeding be dismissed. 2. The applicant pay the respondent's costs of the proceeding not covered by previous orders or costs against him. 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 965 OF 2005

BETWEEN: KEITH RAYMOND ATKINS

APPLICANT

AND: MASTER BUILDERS ASSOCIATION OF

NEW SOUTH WALES

RESPONDENT

JUDGE: LINDGREN J

DATE: 17 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The respondent, Master Builders Association of New South Wales ('the MBA'), moves for summary dismissal of this proceeding, or, in the alternative, for a striking out of the statement of claim.

FACTS 2 The applicant, Keith Raymond Atkins ('Mr Atkins'), commenced the proceeding on 15 June 2005 by filing an application supported by an affidavit sworn by him. Mr Atkins was not legally represented. 3 On 3 August 2005, I ordered that Mr Atkins file and serve a statement of claim properly particularised by 23 August 2005, and that the respondent file and serve its defence by 30 August 2005. The proceeding was stood over to 31 August 2005. 4 Mr Atkins filed a statement of claim on 23 August 2005 and the MBA filed its defence on 30 August 2005. When the proceeding was before the Court on 31 August 2005 I directed the MBA to file and serve any notice of motion seeking to have the statement of claim struck out, returnable on 26 September 2005. On 26 September 2005 I ordered that the statement of claim be struck out with costs, and that Mr Atkins have leave to file and serve an amended statement of claim by 17 October 2005 (see Atkins v Master Builders Association of NSW [2005] FCA 1402). The proceeding was stood over to Wednesday, 19 October 2005. 5 On 17 October 2005, Mr Atkins filed a document entitled 'Statement of Claim' which was in fact an amended statement of claim. When the proceeding was before the Court on 19 October 2005 I granted the MBA leave to file and serve a notice of motion seeking a striking out of that document or summary dismissal, returnable on 16 November 2005. The MBA filed such a notice of motion on 8 November 2005. 6 When the matter was before the Court on 16 November 2005, by consent I ordered that the amended statement of claim filed on 17 October 2005 be struck out with costs, but Mr Atkins was granted leave to file and serve a further amended statement of claim by 7 December 2005. As well, I directed that if he failed to do so, the proceeding should stand dismissed as from that date. Subject to this, the proceeding was stood over to Friday, 9 December 2005. 7 On 7 December 2005 Mr Atkins faxed to the Court a document headed 'Statement of Claim – Defamation and Infringement of Copyright'. The matter was before the Court on 9 December 2005. I ordered that the document, which was in fact a further amended statement of claim, be filed in Court, and that to the extent necessary, the order for 'self-executing dismissal' made on 16 November 2005 be set aside (it was arguable that Mr Atkins had not "filed" by 7 December, 2005). I ordered that the MBA's motion be fixed for hearing today. It was understood that although the notice of motion filed on 8 November 2005 had referred to Mr Atkins's amended statement of claim dated 17 October 2005, it was now to operate in relation to the document filed in Court on 9 December 2005. 8 I also directed on 9 December 2005 that if Mr Atkins wished to support a different statement of claim (that is, different from the further amended statement of claim filed in Court on 9 December 2005) at the hearing of the motion today, he must serve a copy of the proposed document on the MBA by Friday, 10 February 2006. I also ordered that Mr Atkins pay MBA's costs of 9 December 2005, and granted the MBA leave to tax its costs the subject of all existing costs orders. 9 Mr Atkins did in fact serve a different 'statement of claim' on the MBA. It is dated 21 January 2006 and I assume that it was served on the MBA by last Friday, 10 February 2006.