Atkins v Master Builders Association of NSW [2007] FCA 554

FEDERAL COURT OF AUSTRALIA

Atkins v Master Builders Association of NSW [2007] FCA 554 KEITH RAYMOND ATKINS V MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES NSD 1588 OF 2006 JACOBSON J 12 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1588 OF 2006

BETWEEN: Keith Raymond Atkins

APPLICANT

AND: Master Builders Association of NSW

RESPONDENT

JUDGE: Jacobson J DATE OF ORDER: 12 April 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The proceedings be dismissed.

2. The applicant pay the respondent's costs of the proceedings, including any reserved costs.

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 1588 OF 2006

BETWEEN: Keith Raymond Atkins

APPLICANT

AND: Master Builders Association of NSW

RESPONDENT

JUDGE: Jacobson J

DATE: 12 April 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM JUDGMENT) 1 The Master Builders Association moves the Court for an order under Order 20 rule 2 of the Federal Court Rules dismissing these proceedings upon the ground that no reasonable cause of action is disclosed. In order to deal with the application it is necessary for me to set out the history of the proceedings. 2 The proceedings were commenced by an application filed on 21 August 2006, accompanied by a document entitled "Affidavit/Statement of Claim". 3 The allegations in the statement of claim, prepared by Mr Atkins personally, are lengthy. I do not propose to set them out in any detail. They relate to the publication by Mr Atkins of a book called "The Bathroom Book". Mr Atkins states in the statement of claim that he is a licensed builder and he claims to have used his expertise in waterproofing to publish the book. 4 He also states that the Master Builders Association commenced a defamation campaign against him. Although the campaign is said to have started as early as 1994, the gravamen of the allegations seem to relate to events which are said to have occurred in 2003 and 2004. Additionally, the statement of claim refers to a publication endorsed by the Master Builders Association entitled "Guide to Internal Wet Area Waterproofing". Mr Atkins claims that the guide does not acknowledge certain research and development work undertaken by him and said to have been used as sources of information by the author of the guide. 5 Although there was no attempt to link the allegations in the statement of claim to the Trade Practices Act 1974 (Cth) it may be that what Mr Atkins had in mind was to claim damages under s 82 of the Act for misleading and deceptive conduct. However, as I have said, no such cause of action is alleged in the document. Mr Atkins claims damages of $5 million. He claims that the actions of the Master Builders Association have damaged his ability to hold himself out as an expert in the waterproofing educational market and that his reputation has been damaged. Other claims of loss and damage are also set out, all of which are said to have resulted from the actions of the Master Builders Association to which I have referred. 6 On 8 September 2006, the Master Builders Association filed a notice of motion seeking to have the statement of claim struck out and the proceedings dismissed summarily. 7 At the first directions hearing held on 15 September 2006, Mr Atkins appeared in person and told the Court that he would have a barrister appear for him on the next occasion. The proceedings were stood over to 9 November 2006 and directions were made permitting Mr Atkins to serve a draft amended statement of claim before the next directions hearing. 8 On 7 November 2006, a document dated 30 October 2006 entitled "Amended Statement of Claim" was served on the respondent by facsimile. 9 The Master Builders Association's motion was listed for hearing on 18 December 2006. At the hearing, Mr Bruce Levet of counsel appeared for Mr Atkins. Mr Levet informed the Court that he was instructed by a firm of solicitors, Kingham & Associates, of Surry Hills. He informed the Court that he had instructions and that the solicitors would file a notion of appearance, although no notice of appearance by that firm has ever been filed. That, of course, is not a criticism of Mr Levet. 10 Mr Levet informed the Court that he had given advice on the statement of claim as it then stood and that he could not support the pleading without further time within which to consider the matter. He said that he required a period of some weeks within which to obtain instructions from Mr Atkins and that unless he received instructions and evidence from his client to support certain allegations which Mr Atkins wished to make, he could not properly discharge his ethical obligations to the Court. That is to say, what he required was a period of about four weeks within which to obtain a proper evidentiary basis to plead a statement of claim. Mr Levet consented, plainly upon instructions from his client, to the statement of claim filed on 21 August 2006 being struck out. The matter was stood over to 22 February 2007 and Mr Atkins was directed to serve any amended statement of claim by 19 February 2007. 11 On 19 February 2007, a document entitled "Amended Statement of Claim" was sent directly to my chambers. Although it includes his name and contact details as an address for service, it appears that Mr Levet had no involvement with the document and that he was not provided with any further evidence to enable him to discharge his ethical obligations to be able to plead an arguable statement of claim. 12 The hearing of the remainder of the motion, previously set down for 22 February 2007, was later changed to 15 March 2007. On that date Mr Warren Andrews of counsel appeared for Mr Atkins on direct instructions from his client. After some discussions which took place during the morning, Mr Andrews sought leave to withdraw as counsel and I granted leave to him to do so. Mr Atkins then addressed me in person. He informed me that he had a solicitor who would help him and that he would be obtaining a new barrister to represent him. He sought additional time to file an amended statement of claim. I made an order directing him to serve any such amended statement of claim by 10 April 2007. 13 The precise terms of the orders I made on 15 March 2007 were as follows: "[1] The Applicant serve a further amended statement of claim (incorporating particulars of the allegations he wishes to make upon the basis of the evidence he hopes to obtain from nominated witnesses), on or before 10 April 2007.