FEDERAL COURT OF AUSTRALIA Australian Medic-Care Company Limited v Hamilton Pharmaceutical Proprietary Limited [2011] FCA 488 Citation: Australian Medic-Care Company Limited v Hamilton Pharmaceutical Proprietary Limited [2011] FCA 488 Parties: AUSTRALIAN MEDIC-CARE COMPANY LIMITED v HAMILTON PHARMACEUTICAL PROPRIETARY LIMITED File number: SAD 17 of 2007 Judge: LANDER J Date of judgment: 28 April 2011 Cases cited: Décor Corporation v Dart Industries (1991) 33 FCR 39 – applied Date of hearing: 28 April 2011 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr K Keung appeared in person Counsel for the Respondent: Mr P McNamara QC and Mr C Branson Solicitor for the Respondent: DMAW Lawyers IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 17 of 2007 BETWEEN: AUSTRALIAN MEDIC-CARE COMPANY LIMITED Applicant AND: HAMILTON PHARMACEUTICAL PROPRIETARY LIMITED Respondent JUDGE: LANDER J DATE OF ORDER: 28 APRIL 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant's notice of motion filed on 18 April seeking leave to appeal from the orders of Besanko J made on 15 December 2010, 21 December 2010, 23 December 2010, 7 February 2011 and 28 February 2011 and from Registrar Bochner on 22 December 2010 be dismissed. 2. The applicant pay the respondent's costs of the notice of motion of 18 April 2011. 3. Australian Medic-Care Company Limited pay the costs of Hamilton Pharmaceutical Proprietary Limited notice of motion of 21 April 2011. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 17 of 2007 BETWEEN: AUSTRALIAN MEDIC-CARE COMPANY LIMITED Applicant AND: HAMILTON PHARMACEUTICAL PROPRIETARY LIMITED Respondent JUDGE: LANDER J DATE: 28 APRIL 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by Australian Medic-Care Company Limited for leave to appeal against the orders made by Besanko J on 15 December 2010, 21 December 2010, 23 December 2010, 7 February 2011 and 28 February 2011 and against an order made by Registrar Bochner on 22 December 2010. 2 On 29 July 2010 the respondent to this application lodged a bill of costs with the court. The bill of costs was served on the applicant. On 27 September 2010 the taxing officer sent to Dr Keung, a director of the applicant, at the address for service, and to the solicitors for the respondent a letter advising the parties: (1) that the estimate made of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue with $356,322.60; (2) that if a notice of objection was not filed under O 62 r 46 and served, the party filing the bill (Hamilton, the respondent to this application) could, subject to proof of service, request the issue of a certificate of taxation; and (3) on the terms of the certificate of taxation which would issue in those circumstances. 3 No notice of objection was filed and served by the applicant and on 1 November 2010 the respondent wrote to the taxing officer requesting that a certificate of taxation be issued, which occurred on 11 November 2010. On 12 November 2010 Dr Keung wrote to the Registry claiming that he did not receive the estimate through mail or email. He wrote again on 15 November asking why he had not received the estimate. On 19 November 2010, the applicant filed a notice of motion seeking the following orders: (1) The certificate of taxation dated 11 November 2010 issued in the SAD should be set aside forthwith. (2) Leave be grated to the applicant to file and serve a notice of objection to the estimate of the costs within 21 days from the date of the order to be made herein, and (3) There be no order as to costs of this application. 4 The matter came on for hearing before Besanko J on 9 December 2010. At that time, Dr Keung sought leave to appear on behalf of the applicant: O 4 r 14(2). Leave was not opposed and was granted. On 15 December 2010, his Honour dismissed the notice of motion and ordered the applicant to pay the respondent's costs of and incidental to the notice of motion but adjourned further consideration of other orders sought in the proposed minutes of order to Tuesday, 21 December. The purpose of the adjournment was to allow Dr Keung to obtain legal advice on behalf of the applicant in relation to an application by the respondent that a sum of money standing to the credit of the applicant in court be paid to the respondent in partial satisfaction of the respondent's entitlement to costs as a result of the issue of the certificate of taxation. 5 The applicant seeks leave to appeal from those orders but I think on any understanding of the applicant's case, seeks only to appeal against the order which dismissed the applicant's notice of motion of 19 November 2010. His Honour dismissed that notice of motion on the basis that the applicant had not established, as it had to, under O 62 r 46(3)(cb) that it had not received the notice of estimate. His Honour was of the opinion, that in those circumstances, he did not have a discretion to make the order sought in the notice of motion and dismissed it. As I understand it, there is no suggestion that his Honour was wrong in his finding that the applicant had failed to prove the non-receipt of the notice of estimate. 6 The matter came on again on 21 December 2010 when the applicant was represented by solicitors who sought the further adjournment of the application for a period of two days in order that the applicant could file a notice of motion seeking further relief in relation to the certificate of taxation, and respond to the orders sought by the respondent in relation to the payment out of moneys. On 21 December 2010, his Honour adjourned further consideration of the orders until 23 December and ordered the applicant and Dr Keung to pay the costs of the respondent. The applicant seeks leave to appeal from that order. Clearly, no complaint can be been made of paragraph 1 of the orders and, I suppose, on any understanding of the application, the application must be limited to paragraph 2 of the orders. 7 On 22 December 2010, being the day after the hearing and the day before the hearing was to resume, Registrar Bochner issued an order that the applicant pay the respondent the sum of $356,322.60, being the amount of the estimate of the costs and the amount for which the certificate of taxation had issued under O 62, r 45(3). The applicant seeks leave to appeal from that order. That order is simply a consequence of the operation of the rules. 8 On 23 December 2010, the applicant was represented by counsel, and the applicant consented to a suite of orders, which his Honour made, which provided a regime whereby the applicant's notice of motion of 23 December, further challenging the certificate of taxation, could be heard by his Honour on 18 February 2011. In those orders his Honour noted an undertaking given by the applicant: (a) to submit to such order, if any, as the Court may consider to be just, for the payment of compensation, to be assessed by the Court, or as it may direct, to any person, whether or not a party, affected by the inability to use the remainder of the moneys standing in the account referred to from time to time; and (b) to pay the costs of the respondents of and incidental to the applicant's notice of motion, dated 22 December 2010 in any event. And upon the further condition of the payment into court within seven days of the sum of $15,000. 9 His Honour listed the matter for hearing on Friday, 18 February. At the same time his Honour made an order for the payment out of court of the sum of $200,000, which was paid into court by the applicant to the respondent. That amount was ordered to be paid as a consequence of the order of the court made by Registrar Bochner, by operation of O 62 r 45(3) on the previous day. 10 His Honour orders allowed the applicant to further challenge the certificate of taxation provided, as I have said, that the applicant pay into court within seven days the sum of $15,000 by way of security for costs. The applicant now seeks leave to appeal from those consent orders. 11 The moneys ordered to be paid into court were not paid, and as a consequence on 25 January the respondent applied for an order that the notice of motion of 22 December be dismissed for the applicant's failure to provide security. 12 The matter came on before his Honour on 7 February, where his Honour made an order staying the applicant's notice of motion of 22 December. His Honour also made an order for the payment out of the balance of moneys standing in the Court to the credit of the respondent. He vacated the hearing on 18 February 2011. He further ordered that the respondent's notice of motion, upon which he had made the stay, be further considered on 28 February 2011. The applicant was ordered to pay the costs of the hearing in any event. The applicant seeks leave to appeal from those orders. 13 On 28 February 2011 the matter came on for hearing again, before Besanko J, when he dismissed the applicant's notice of motion of 22 December 2010 and ordered the applicant to pay the respondent's costs of and incident to that notice of motion. 14 The applicant seeks leave to appeal from those orders. 15 The applicant's application for leave to appeal is out of time and no extension of time is sought, but an extension would be granted if I were of the opinion, I think, that leave should be granted, because the applicant had satisfied the test for leave. 16 In Décor Corporation v Dart Industries Incorporated (1991) 33 FCR 39 the Full Court said that generally, the test for the grant of leave to appeal involves two considerations: (1) Whether in all the circumstances the decision, which is sought to be challenged is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice will result if leave were refused, supposing the decision to be wrong. 17 The applicant has not identified any error in any of his Honour's orders, which would satisfy the first limb of the Décor test. Indeed, the orders made on 21 and 23 December, and 7 and 28 February, could not be challenged under any circumstances. The order of 21 December was an adjournment, and an order for costs occasioned by the need for the adjournment, which could not be subject in any way to a determination that the order was attended by sufficient doubt to warrant its reconsideration. 18 The orders of 23 December were made by consent, and in those circumstances cannot be challenged. The order of 7 February was a consequence of the applicant's failure to comply with the orders of 23 December, and in my opinion could not be challenged. And the order of 28 February was a further consequence of the applicant's failure to comply with the orders of 23 December, both before and after 7 February. None of those orders could be subject to a grant of leave. 19 The order made by Registrar Bochner on 22 December is simply a reflection of the rule in O 62 r 45(3), and in my opinion could not be subject to a grant of leave even if it were an order from which leave could be given. 20 The first order made on 15 December by which his Honour dismissed the applicant's notice of motion of 19 November, in my opinion, could not also be subject to a grant of leave under the first limb of the Décor test. But even if the first limb of the Décor test were satisfied, in my opinion, the applicant has not made out the second limb, that is, that even if the decision were wrong that the applicant would suffer any injustice. 21 The fact is that the bill of costs has been subject to the scrutiny of a taxing master within the court and a certificate of taxation issued. In due course, an order was made under O 62 r 45(3), and the costs become payable. 22 In my opinion, for all those reasons the application for leave to appeal from the various orders to which I have referred should be dismissed. Even if I had been of a different mind and thought that leave should be granted it could not have been granted except upon conditions. The applicant has had a number of opportunities to challenge the provision of the estimate and the provision of the certificate of taxation which were first disposed of by his Honour on 15 December. His Honour allowed a further hearing if the applicant were prepared to pay the respondent's costs and to pay an amount by way of security before the hearing. 23 The applicant did not pay the security for costs and has not paid the other costs. In those circumstances, even if I were of the opinion that leave should be granted it would be subject to the provision of a substantial sum by way of security for costs. Indeed, the respondent has filed a notice of motion asking for the sum of $10,000 by way of security for costs in relation to this notice of motion but having regard to the fact that I will dismiss the notice of motion now I need not rule upon that. 24 The orders will be: (1) The applicant's notice of motion filed on 18 April seeking leave to appeal from the orders of Besanko J made on 15 December 2010, 21 December 2010, 23 December 2010, 7 February 2011 and 28 February 2011 and from Registrar Bochner on 22 December 2010 be dismissed. (2) The applicant pay the respondent's costs of the notice of motion. 25 The respondent filed a notice of motion on 21 April 2011 very shortly, it would appear, after receiving the applicant's notice of motion seeking leave to appeal. That notice of motion sought an order that the applicant pay $10,000 into Court by way of security for costs in relation to the application. Mr McNamara QC, who has appeared for the respondent, said that the applicant was obliged to move quickly in relation to the application and issued the notice of motion for security for costs at the first available opportunity. He said that the application in the notice of motion for security for costs was reasonable in the circumstances having regard to the history of the matter. I agree with both of those contentions. I therefore agree with Mr McNamara's contention that the applicant should pay the respondent's costs of that notice of motion. (3) Australian Medic-Care Company Limited pay the costs of Hamilton Pharmaceutical Proprietary Limited's notice of motion of 21 April 2011. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 13 May 2011