Campbell v Zeiher (No 2) [2009] FCA 1193

FEDERAL COURT OF AUSTRALIA

Campbell v Zeiher (No 2) [2009] FCA 1193

GEOFFREY VINCENT CAMPBELL v FELICITY ZEIHER and RUKUS INDUSTRIES PTY LTD (ACN 135 831 159)

NSD 344 of 2009

GRAHAM J

2 OCTOBER 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL dIVISION NSD 344 of 2009

BETWEEN: GEOFFREY VINCENT CAMPBELL

Applicant

AND: FELICITY ZEIHER

First Respondent

RUKUS INDUSTRIES PTY LTD (ACN 135 831 159)

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 2 OCTOBER 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion filed 25 September 2009 be dismissed with no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 344 of 2009

BETWEEN: GEOFFREY VINCENT CAMPBELL

Applicant

AND: FELICITY ZEIHER

First Respondent

RUKUS INDUSTRIES PTY LTD (ACN 135 831 159)

Second Respondent

JUDGE: GRAHAM J

DATE: 2 OCTOBER 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There are two applications presently before the Court. Firstly, a Notice of Motion filed 25 September 2009, which is returnable before the Court at 10:15am today, 2 October 2009. I am satisfied that a copy of that motion was duly served on the applicant by it being left for the applicant at the address for service, being that of the solicitors A R Walmsley & Co, at Windsor on Friday, 25 September 2009. 2 The other matter presently before the Court is described as an application for leave to be represented by a person who is not a barrister or a solicitor. The document was filed on 7 September 2009 and does not disclose any return date, although I am satisfied that a copy of the application was in fact served on the applicant, Mr Campbell, by a copy of it being left with his solicitors, A R Walmsley & Co, on 25 September 2009. 3 The first respondent claims to be the sole shareholder and sole director of the second respondent and seeks leave to represent the second respondent in the proceeding. Order 9, rule 1(3) of the Federal Court Rules requires corporations to appear by a solicitor when defending proceedings, except with the leave of the court or a judge to do otherwise. Whilst I have previously allowed the first respondent to appear for the second respondent, I did so on 24 August 2009 limiting the right to do so to that day. 4 When the matter was before the Court today, the first respondent indicated that she wished to pursue a claim for interlocutory relief generally in accordance with prayers for relief 4, 5, 6 and 7 in a cross-claim filed by her, purportedly on behalf of both herself and the second respondent, on 24 September 2009. 5 The dispute in the proceedings relates to a book. In simplest terms, the issue would appear to be whether the book was authored by the applicant or by the first respondent or by the applicant and the first respondent. The book is said to relate to what has been referred to as the 'Milperra Massacre'. The title of the book is said to be 'The Milperra Massacre – the True Story – through the eyes of Snake'. 6 On 28 April 2009 interlocutory relief was granted to the applicant by the then duty judge up to and including 11 May 2009. On 11 May 2009 that relief was continued until further order. 7 The matter has presently been fixed for hearing with an estimate of four days to commence on Tuesday, 17 November next. 8 Insofar as the second respondent may be a necessary party to the application for interlocutory relief, a matter about which I say nothing at this stage, it would seem to me appropriate for it to be represented by a solicitor and I would not be disposed to grant leave to the first respondent to represent it in respect of any claim to which it is a party in which it may be seeking interlocutory relief. It may be that at a later stage in the proceedings an order may be made granting leave to the first respondent to appear for the second respondent. As presently advised I would not be disposed to make such an order on the evidence presently before the Court, especially as there is a cross-claim made in conjunction with the defence filed 24 September 2009. 9 The Notice of Motion filed 25 September 2009 is basically one which seeks an order for security for costs. No mention is made in the motion of s 56 of the Federal Court of Australia Act 1976 (Cth); reference is, however, made to Order 28, rule 3 and rule 5 of the Federal Court Rules. There is no relevant evidence to justify the making of an order for security for costs at the moment. Whilst it is said by the first respondent from the bar table that she has incurred past costs with a solicitor, there is no evidence as to what costs have been incurred. Neither the first nor the second respondent is presently represented by a solicitor and there is no evidence as to what costs would be likely to be incurred hereafter for which security should be ordered. 10 Given that the matter is fixed for hearing on a final basis on 17 November 2009, it may be that an order for security for costs would be inappropriate in any event, especially since the matter has now been on foot since late April and no application has been made for an order for security until the current application was ventilated for the first time on or about 9 September 2009. 11 On the evidence presently before the Court I would not be disposed to make any orders on the Notice of Motion filed 25 September 2009. 12 I order that the Notice of Motion filed 25 September 2009 be dismissed. I make no order as to costs in respect of that motion. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.