FEDERAL CIRCUIT COURT OF AUSTRALIA
SIMS v RM CAPITAL PTY LTD & ANOR (No.2)	[2015] FCCA 149	

Catchwords: 
PRACTICE AND PROCEDURE – Pro bono referral certificate – factors to be taken into account — means — nature and complexity of proceeding — whether other steps taken to obtain legal advice.

PRACTICE AND PROCEDURE – Extension of time – factors to be taken into account – whether explanation for delay.

PROFESSIONS AND TRADES – Lawyers – duties and liabilities – solicitor and client – conflict of interest.

COSTS – Whether to suspend costs order – taxation.	

Legislation:
Bankruptcy Act 1966 (Cth), s.40(1)(g)
Corporations Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth), sch.2 cl.18
Federal Circuit Court of Australia Act 1999 (Cth), s.15(a)
Federal Circuit Court Rules 2001 (Cth), rr.3.05, 12.02, 12.03
Federal Magistrates Court Amendment Rules 2012 (No. 1) (Cth), r.1 sch.1 item 6
Racial Discrimination Act 1975 (Cth)	

Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491
Bartucciotto v Western Health Care and Ors (2007) 94 ALD 387; [2007] 
FMCA 26
Canberra Residential Developments Pty Ltd v Brendas [2009] FCA 1484
Deputy Commissioner of Taxation v Jaskola (2011) 8 ABC(NS) 603; [2011] FMCA 67
Fuller v Toms [2012] FCA 27
Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612; [2006] FCA 1404
Hawkins v Kingsway Group Ltd [2009] FCA 1073
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
Kelair Holdings Pty Ltd v Archer Consolidated Equities Pty Ltd [2009] FMCA 1127 
Mather v Luttrell Ltd & Ors [2003] FMCA 62
Schokker v Commissioner of Taxation (No 2) (2000) 106 FCR 134; [2000] FCA 1734
Sims v Jooste [2013] WASC 425
Sims v Jooste QC (No 2) [2013] WASCA 245
Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977
Sims v Suda Ltd [2014] WADC 161
Skipworth v State of Western Australia & Ors (No 2) (2008) 218 FLR 16; [2008] FMCA 544
Suda Ltd v Sims [2013] FCCA 1833
Temby & Anor v Chambers Investment Planners Pty Ltd & Anor [2010] FMCA 783
Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292	

Applicant:	Douglas Arthur Sims	

First Respondent:	Rm Capital Pty Ltd	

Second Respondent:	James Bradley RichArdson	

File Number:	PEG 393 of 2013	

Judgment of:	Judge Antoni Lucev	

Hearing date:	23 January 2015	

Date of Last Submission:	23 January 2015	

Delivered at:	Perth	

Delivered on:	23 January 2015	

REPRESENTATION
For the Applicant:	In person.	

Counsel for the Respondents:	Mr NC Ebbs	

Solicitors for the Respondents:	Bennett + Co	

ORDERS
(1)	In relation to the application in case filed 23 January 2015:
(a)	the time for compliance with order 2 of the Court’s orders of 22 December 2014 be extended to 26 February 2015; and
(b)	that otherwise the application in a case be dismissed.
(2)	The respondents have leave to apply forthwith for taxation of their costs with respect to order 3 of the Court’s orders of 22 December 2014, with those costs to be taxed by a Registrar as soon as reasonably practicable .
(3)	The applicant pay the respondents’ costs in the sum of $2730 by 23 February 2015.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Perth	
PEG 393 of 2013
Douglas Arthur Sims	
Applicant

And

Rm Capital Pty Ltd	
First Respondent
James Bradley Richardson	
Second Respondent

REASONS FOR JUDGMENT
(Edited ex tempore reasons)
1.	On 22 December 2014, the Court made orders in these proceedings in the following terms: 
(1)	The application filed 20 December 2013 be struck out pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

(2)	The applicant have leave to file and serve a further application by 27 January 2015, provided that:

(a)	the application has annexed a statement of claim properly particularised; and
(b)	the statement of claim must be prepared by a lawyer and include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for each:

(i)	allegation in the pleading;
(ii)	denial in the pleading; and
(iii)	non-admission in the pleading.

(3)	The applicant pay the costs of the respondents on an indemnity basis, with the actual quantum, if not agreed, to be assessed by a Registrar of this Court.

(4)	There be liberty to apply generally.

2.	On 20 January 2015, the applicant, Mr Douglas Arthur Sims (“Mr Sims”), filed an application in a case in which he seeks orders as follows:
1)	Date for compliance order dated 22 December 2014 be extended until 26 February 2015.
2)	Certificate Pro Bono be issued.
3)	Bennett & Co be struck from Court Registry (Conflict).
4)	Cost be suspended.
3.	Mr Sims’ application in a case was supported by an affidavit sworn 20 January 2015 (“Mr Sims’ affidavit”). 
4.	With respect to the extension of time, Mr Sims seeks to extend the time for filing a properly particularised application and statement claim prepared and signed by a lawyer from 27 January 2015 to 26 February 2015, an extension of slightly more than four weeks.  
5.	In the exercise of the Court’s discretion under r.3.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to extend the time specified in a court order.  No criteria for extending the time are set out. This Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J, namely: 
(a)	that the relevant time limit ought not be lightly ignored;
(b)	the length of the delay; 
(c)	the explanation for the delay; 
(d)	the prejudice to the other party; and 
(e)	the prospects of success of the underlying application, with the emphasis generally being on this latter issue. 
See also: Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 at paras.15-16 per Ryan J and Deputy Commissioner of Taxation v Jaskola (2011) 8 ABC(NS) 603 at 608 per Lucev FM; [2011] FMCA 67 at para.18 per Lucev FM.  
6.	It is for the Court to weigh the factors, and according to the particular circumstances one factor may outweigh another: Hawkins v Kingsway Group Ltd [2009] FCA 1073 at para.5 per Stone J. In this case Mr Sims has not ignored the time limit.  The application in a case was filed a week before the expiry of the time specified in the Court’s 22 December 2014 orders.  There is, therefore, no delay in making the application in a case, and the delay or extension sought in which to comply with the Court’s 22 December 2014 orders is only a period of four weeks.  Whether there is an acceptable reason for the delay and consequent extension depends upon the evidence.  Presently, the relevant evidence is in Mr Sims’ Affidavit which, for these purposes, at least, is unchallenged and which indicates as follows:
	(3) On 22 December 2014, I was admitted to the extensive care coronary unit of St John of God Hospital, Murdoch WA suffering from heart failure.
	(4) On 23 December I underwent procedure surgery and ordered to 2 weeks recovery being discharged on 24 December 2014.  
	(5) On 10 January 2015 I was admitted to emergency at Busselton Hospital with further heart condition.
	(6) On 11 January 2015 I was admitted to Extensive Care Coronary Division in Murdoch for further treatment.
	(7) I’m not permitted to drive and have been greatly disadvantaged to my ability to conduct my case or the Orders.
7.	In the course of the hearing this morning Mr Sims exhibited discharge records which are exhibit 1 in these proceedings, which indicate that he was discharged from St John of God Murdoch Hospital with certain medications, and the medication lists indicate a preparation date of 23 December 2014, consistent with the terms of paragraphs 3 and 4 of Mr Sims’ affidavit.  On the basis of the evidence as it stands, Mr Sims has:
(a)	suffered two episodes of heart-related conditions since 22 December 2014, that being the date of the relevant Court order; 
(b)	been admitted to hospital at St John of God in Murdoch and Busselton Hospitals for treatment;
(c)	spent at least two weeks, and, therefore, almost all of the time between the two episodes, in recovery; 
(d)	because of his medical condition had no time between 22 December 2014 and 11 January 2015, and possibly thereafter, in which to properly instruct a lawyer; and 
(e)	had limited mobility due to his not being allowed to drive.
8.	The above circumstances adequately explain why an extension of time is sought by Mr Sims.  The circumstances are clearly beyond his control and, subject to consideration of other factors, constitute a relatively compelling case of the extension sought to be granted.  And, quite properly, the respondents do not take issue with the extension on the medical grounds advanced, although they did take issue with the length of extension which was sought.  
9.	An absence of prejudice is not, of itself, a sufficient basis for the grant of an extension.  In this case the extension does not seem to significantly further prejudice the respondents as indicated by their lack of opposition to an extension per se.  The delay is limited in time.  The grant of the extension may, however, mean that the respondents have to meet a claim that would not otherwise be made were an extension not to be granted, but that has to be weighed against the reasons for the delay and the extensions sought which, as the Court has already noted, involve relatively compelling circumstances. The Court notes in terms of prejudice that the recovery of costs on taxation may be delayed until the final disposition of the matter in ordinary circumstances, but for reasons that the Court will come to later that is not a factor which requires further consideration at this stage.  
10.	In relation to the prospects of success of the underlying application, the Court notes what it said in its Reasons for Judgment handed down on 22 December 2014 in Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977 at paras.70-71 per Judge Lucev (“RM Capital (No.1)”):
70. The Substantive Application as presently framed is clearly hopeless, and has no prospect of success. The Court notes that this is the first occasion on which Mr Sims has endeavoured to make an application to this Court dealing with these particular issues. As a self-represented litigant he has obviously found that very difficult, and the claims themselves reflect an unfocussed “shotgun” approach to litigation. The Court observes that on more than one occasion Mr Sims has been told that if he has genuine causes of action then it appears that he requires the assistance of a lawyer before they will emerge.[Citing: Sims v Jooste QC [2013] WASCA 245 at para.19 per Pullin and Newnes JJA (“Jooste QC”) and Suda Ltd v Sims [2013] FCCA 1833 at para.73 per Judge Lucev (“Suda Ltd v Sims”)] In the above circumstances, it would not be untoward for the Court to dismiss the Substantive Application.

71. The Court does however note that Mr Sims did have a signed Share Transfer, that he did seek the transfer of the shares in the Share Transfer, and that the Share Transfer was not effected. Whilst nothing has been put to date in these proceedings giving rise to a cause of action with respect to that matter, it may be that Mr Sims can craft a proper cause of action (if one exists) with the assistance of an experienced commercial litigator, or receive advice that he has no proper cause of action at all. This may depend upon the circumstances of the case which have not been put in any coherent or intelligible form in the Substantive Application. Bearing in mind that this is Mr Sims first attempt to deal with these issues in this Court, and bearing in mind that properly advised he may be able to determine whether or not he has a proper cause of action on whatever the true facts of this particular situation are, the Court will strike out the Substantive Application under r.13.10 of the FCC Rules, and by leave will allow until 27 January 2015 for Mr Sims to replead. That leave will be conditional upon an amended application being filed, together with a statement of claim, with that statement of claim being certified in the manner prescribed in r.16.01 of the Federal Court Rules 2001 (Cth). There will be liberty to apply.

11.	In circumstances where the purpose of the Court’s 22 December 2014 order was to allow Mr Sims to re-plead his case, if he has one and if he is able to do so, it would be otiose to place any weight on a consideration of the prospects of success of the underlying application.  As earlier indicated, the Court notes the extension of time is not opposed by the respondents, although they sought that only two weeks be allowed.  As the Court indicated in argument, if it can be assumed, and it appears to be a safe assumption that no one is presently instructed for Mr Sims, two weeks would not, in the Court’s view, in all the circumstances be a sufficient amount of time to deal with the matter properly, having regard to the subject matter and the nature of the difficulties which might be inherent in dealing with Mr Sims as a client in the matter, as evidenced by the nature of the matters sought to be advanced in these proceedings, and, therefore, a one-month extension would be more appropriate.
12.	There will, therefore, be in the circumstances an order that time under order 2 of the Court’s orders of 22 December 2014 be extended from 27 January to 26 February 2015.  
13.	Turning to the issue of pro bono assistance: Mr Sims makes an application for a pro bono referral certificate to be issued by the Court, which the Court may do under r.12.02(1) of the FCC Rules The facts relied upon in Mr Sims’ affidavit in this regard are as follows:
	Direction Order 2
	1. In my limited ability due to my heart condition I seek the appointment of a pro bono lawyer because I have contacted two lawyers who both require $10 to 20,000 be deposited in their Trust Accounts before giving advice and registering on the Court record.
	2. I have met with Federal Legal Aid who informed me they do not have the expertise to advise me of matters concerning Corporations Law and related commercial law.
	3. I seek a certificate of pro bono to support me and my prima Facie case to be answered.
14.	Under r.12.02 of the FCC Rules Mr Sims has no right to apply for a referral: FCC Rules, r.12.03.  Although, that does not prevent a party from raising the question as a means of initiating the Court’s consideration of the exercise of its discretion: Fuller v Toms [2012] FCA 27 at para.94 per Barker J (“Fuller v Toms”).  In that respect, the rules were amended, with effect, from 23 May 2012 to preclude such applications being made: Federal Magistrates Court Amendment Rules 2012 (No.1) (Cth), r.1, sch.1 item 6.  The issuance of a pro bono referral certificate is, therefore, an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation (No 2) (2000) 106 FCR 134; [2000] FCA 1734, and an exercise of a discretion of the broadest type by the Court in which the Court is not restricted to the specific factors listed in r.12.02(2)(a)-(c) of the FCC Rules: Fuller v Toms at para.96 per Barker J; Bartucciotto v Western Health Care and Ors (2007) 94 ALD 387 at 391 per Lucev FM; [2007] FMCA 26 at para 24 per Lucev FM (“Bartucciotto”).
15.	Looking, then, at the criteria in r.12.02(1) of the FCC Rules and, firstly, the means criteria, in the course of argument Mr Sims indicated that he had not retained a lawyer because he was not prepared to pay the $10,000 to $20,000 sought by a lawyer to be put on deposit in a trust account.  When explored in argument Mr Sims admitted that he was not prepared to pay the above amount because he would have to sell assets to do so.  It is, therefore, apparent that he has means but is not prepared to part with or encumber the assets that he has in order to instruct a lawyer in these proceedings. Secondly, there is little evidence, apart from what has just been alluded to, in terms of the visit to the federally-funded legal aid referral service provided by the federal courts, of Mr Sims’ capacity to otherwise obtain legal assistance, and no evidence of any approaches to the Western Australian Bar Association, the Western Australian Law Society or any of the community pro bono centres or law school services from which it is sometimes possible to obtain pro bono assistance, particularly for interesting cases.  
16.	Turning then to the nature and complexity of the proceedings.  It is clear that the issues which have been raised and which were referred to in RM Capital (No.1) highlight the fact that there are factual and legal, including, in particular, jurisdictional difficulties with the case that Mr Sims proposed to advance.  In that regard, a competent commercial lawyer might assist Mr Sims to determine: 
(a)	if he has a case and all;
(b)	 if he has a case, whether all or any part of it is within or without the jurisdiction of this Court. In that regard, the Court notes in particular what it said as to the civil and criminal Corporations Act 2001 (Cth) jurisdiction and criminal jurisdiction of this Court in RM Capital (No.1) at paras.39 to 66 per Judge Lucev.
17.	If Mr Sims has a case within the jurisdiction of this Court, then a component commercial lawyer might assist with the drafting of a further application and statement of claim in a proper manner and form.  The Court notes that both the Supreme Court of Western Australia Court of Appeal and this Court have previously commented on the necessity of Mr Sims obtaining legal assistance to put his various claims in proper from, and the Court refers in that regard to Jooste QC at para 19 per Pullin and Newnes JJA, Suda Ltd v Sims at para.73 per Judge Lucev and RM Capital (No.1) at para.75 per Judge Lucev.
18.	In the above circumstances – and bearing in mind particularly what the Court has said about the possibility that there is a cause of action which might emerge in these proceedings, and the Court refers to passages already cited in RM Capital (No.1) and the reasons the Court did order that the application and statement of claim be prepared by a lawyer if they were to be re-pleaded – the Court considers that this is an appropriate case for a lawyer to act for Mr Sims and all the more so because it seems that that might be the only way in which if Mr Sims have a cause of action, that the Court might be aided by a properly formulated application and statement of claim: see Bartuciotto at ALD 393-394 per Lucev FM; FMCA paras.35 and 37.
19.	The solution to this issue, however, seems to be in Mr Sim’s hands.  He has assets.  He has means. And in those circumstances, if he chooses not to use them to instruct a lawyer and thereby not meet the terms of the Court’s orders of 22 December 2014, that is a matter for him.  In the Court’s view – and bearing in mind the scarcity of pro bono resources which only exist because of the goodwill of the legal profession and are provided voluntarily and therefore cannot be mandated to be provided by the Court: Bartuciotto at ALD 393 per Lucev FM; FMCA para.25 per Lucev FM – pro bono resources are not to be expended because a person of means chooses not to utilise those means to instruct lawyers. The Court therefore exercises its broad discretion in this matter by determining there will be no pro bono referral.
20.	Turning now to the conflict of interest claim:  Mr Sims seeks an order that the respondents’ lawyers be prevented from acting further for the respondents in this matter, alleging a conflict of interest insofar as they presently act.  The facts relied on for this part of the application in the case are within short compass and are set out in Mr Sim’s Affidavit as follows:
Direction Order 3
(1)	Bennett & Co is the representative lawyers for Suda Ltd.
(2)	First and Second Respondent have claimed that Suda Ltd instructed them not to transfer the issued shares, the subject of this Action, to me.
(3)	Martin Bennett, Counsel, is recorded as stating that if his clients, first and Second Respondents, are found liable, then his client will sue Suda Ltd.
(4)	Bennett & Co is also the representative lawyers for Suda Ltd in matters surrounding indemnity for Costs, which costs in this matter fall within those indemnities surrounding and in connection with the Officer being an Officer of Suda Ltd and, or an Action to enforce the terms of the Deponents rights under that agreement, that is, Suda to Act honestly within the terms of the contract and, or pursuant to s 184 (1) (a)(b) of the Corporations Act (Cth) and, or s 189 (a)(i)(ii)(iii) and, or s 189(b).
(5)	Bennett & Co should also be removed pursuant to s18 Australian Consumer Law (ACL) and, or section 18(1) ACL whereby:  
“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead and deceive”.  
s4(2)(a) of Competition and Consumer Act 2010 (CCA) defines “conduct” as:
“doing or refusing to do any act, including the making of, giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or requiring of the giving of, or the giving of, a covenant.”
(6)	Pursuant to contravention of “Lawyer’s Paramount duty to the Court”, Ipp J.
21.	The grounds on which a court might restrain a practitioner from acting have been conveniently summarised by the Federal Court in Canberra Residential Developments Pty Ltd v Brendas [2009] FCA 1484 at para.16 per Stone J (“Canberra Residential Developments”), and outlined in similar terms in Temby & Anor v Chambers Investment Planners Pty Ltd & Anor [2010] FMCA at 783 at paras.16-17 per Lucev FM.  Those grounds are as follows: 
(a)	 the danger of misuse of confidential information;
(b)	a breach of a fiduciary duty of loyalty not to act against a client or against a former client in the same matter or a closely related matter; and 
(c)	the inherent jurisdiction of the Court to control the conduct of legal practitioners as officers of the Court.
See also: Bahonko v The Nurses Board of Victoria (No.3) [2007] FCA 491 at para.4 per Middleton J (“Bahonko”); Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612 at 617-620 per Young J; [2006] FCA 1404 at paras.24-35 per Young J (“Geelong School Supplies”).  
22.	In Canberra Residential Developments, the Federal Court, having referred to the above grounds, went on to observe as follows at para.20:
	20. Finally, the inherent jurisdiction of the court to control its processes in aid of the administration of justice would only be invoked to restrain a legal practitioner from acting for its client if “a fair minded, reasonably informed member of the public would conclude that the proper administration of justice warrants such restraints”:   Geelong School Supplies at [35].  It is a jurisdiction that is “to be regarded as exceptional and needs to be exercised with caution”:  Kallelinocos v Hunt (2005) 64 NSWLR 561 at 582. In this case, the emphasis must be on “reasonably informed”.
23.	Accepting that this Court has no inherent jurisdiction but rather an implied incidental power to make orders necessarily incidental to express powers: Skipworth v State of Western Australia & Ors (No. 2) (2008) 218 FLR 16 at 27 per Lucev FM; [2008] FMCA 544 at para.34 per Lucev FM, and substituting the concept of implied incidental power for inherent jurisdiction in the above summary and quotation, the grounds set out in Bahonko, Geelong School Supplies and Canberra Residential Developments are the grounds on which the Court might restrain a lawyer from acting for a party. And the order that would issue would be in the nature of an injunction under the power given to the Court in s.15(a) of the Federal Circuit Court of Australia Act 1999 (Cth): see Kelair Holdings Pty Ltd v Archer Consolidated Equities Pty Ltd [2009] FMCA 1127 at para.19 per Lucev FM and Mather v Luttrell Ltd & Ors [2003] FMCA 62 at para.26 per McInnis FM.  
24.	All of that said, there is much force in the submission of counsel for the respondents, that there can be no conflict in this matter presently because there is no application or statement of claim and therefore no allegations of fact against which to test a conflict of interest claim. For that reason alone, the Court is of the view that in the exercise, cautiously and exceptionally, of the jurisdiction to retrain a lawyer that the conflict of interest case cannot succeed in the circumstances of this case.  Otherwise, in this case it seems that because of what is asserted, it might have been a case where all three of the categories referred to above come into play.  The factual material is, however, sparse.  There is nothing which indicates a present conflict between the first respondent, RM Capital Pty Ltd, the second respondent, Mr Richardson or Suda Ltd. Rather, if anything, it seems that they may be singing the same song, so to speak, presently.  Further, Suda Ltd is not a party to this action, at least presently, and whilst it might be party to other actions involving Mr Sims, it has sounded no discordant note in or arising from these proceedings.  On the evidence, such as it is, there is no present conflict of interest if the same lawyers act for the respondents and Suda Ltd.  Because of the need to be cautious and because the jurisdiction is exceptional, the Court is entitled to treat the hearsay statement attributed to Mr Bennett in Mr Sim’s affidavit with some caution. Hearsay may be admissible in interlocutory proceedings, but the Court treats very cautiously and gives little or no weight to it in the circumstances of this case where no source of knowledge is cited.  It is a bare assertion without any context and it is put in the parts of Mr Sims’ Affidavit which are essentially argumentative.  There is no doubt that if the factual circumstances attributed to Mr Bennett come to pass then the respondents’ current lawyers may have to cease acting for both of the respondents in the case as well as Suda Ltd, but that is not a matter which the Court presently needs to deal with on the evidence as it stands in this case.
25.	Albeit in a slightly different context, the Court adopts what was said by the Supreme Court of Western Australia (“Supreme Court”) in Sims v Jooste [2013] WASC 425 (“Jooste Conflict”) where the Supreme Court found that, firstly, Mr Sim’s affidavit material does not provide any underlying admissible evidentiary material to set a proper platform for that conflict of interest claim: Jooste Conflict at para.33 per Kenneth Martin J; and, secondly, that the grievance over the conflict of interest is one for Suda to assert, not Mr Sims, and to paraphrase what was put in the course of hearing in this matter, for all the Court knows and Mr Sims conceded that it was probably the case, Suda might be, if not overtly, then certainly discreetly, assisting in the conduct of the litigation:  Jooste Conflict at para.34 per Kenneth Martin J.
26.	In the above circumstances, the suggestion in Mr Sims’ Affidavit that there is a conflict arising from or independent cause of action arising from cl.18 of The Australian Consumer Law (Competition and Consumer Act 2010 (Cth) sch.2 cl.18) is simply misconceived on the evidentiary material presently before the Court.  
27.	Having regard to all of the above circumstances, the Court will not issue an order in the nature of an injunction restraining Mr Bennett or Bennett + Co from acting as the respondents’ lawyers in these proceedings.
28.	Turning now to the questions of costs:  Mr Sims seeks to have the costs order made on 22 December 2014 suspended, or perhaps as was said at the hearing today, varied, to be costs in the cause. The basis on which that claim is made is set out in Mr Sims’ Affidavit as follows:
Direction Order 4
(1)	All costs including Legal costs are the liability of Suda Ltd arising from and in connection with me being an Officer and past officer of Suda Ltd.
(2)	The Indemnity is a continuing indemnity until all legal matters are resolved, and
(3)	The indemnity is IRREVOCABLE.
(4)	I seek to join Suda Ltd and Bennett & Co to the Action pursuant to s18 Australian Consumer Law, Suda Ltd pursuant to Trade Practices Act 1974 and the Board of Directors of Suda Ltd pursuant to s18(10  of ACL and s4(2)(a) CCA.
(5)	I am in the process of seeking Judicial Review
29.	No evidence of the alleged indemnity is before the Court in these proceedings and that is a sufficient basis on which to dismiss this part of the application in the case.  
30.	The Court, however, notes and was told that the relevant indemnity has been ruled upon and dismissed as to its application in District Court proceedings, which are Sims v Suda Ltd [2014] WADC 161 at paras.81-101 per Davis DCJ (“Suda-District Court”) in respect of an indemnity sought for the cost of Federal Court proceedings brought by the chairman of the board of directors of Suda Ltd, Mr Jooste QC, in respect of an alleged contravention by Mr Sims of the Racial Discrimination Act 1975 (Cth).  
31.	It appears that those proceedings were settled, but Mr Sims claimed the costs of defending them pursuant to the indemnity: Suda-District Court at paras.6 and 7 per Davis DCJ.  Although the judgment in Suda-District Court is, the Court was told, under appeal to the Supreme Court of Western Australia Court of Appeal, that is immaterial because:
(a)	there is no evidence as to the indemnity before this Court;
(b)	even if there was evidence, or if the Court takes notice of the indemnity as set out in Suda-District Court, it is immaterial for present purposes.  
32.	The indemnity allows Mr Sims to claim in contract against Suda Ltd for matters covered by the indemnity.  It might also operate as a “defence” to a bankruptcy claim by way of a counterclaim, cross-demand or setoff for the purposes of s.40(1)(g) of the Bankruptcy Act 1966 (Cth). The indemnity does not, however, prevent a Court from exercising its discretion to award costs against Mr Sims as the Court has done on an indemnity basis in these proceedings in respect of the earlier strikeout application see: RM Capital (No.1) at paras.72-75 per Judge Lucev.  
33.	The indemnity operates and is justiciable independently of these proceedings and does not prevent the Court from making the usual costs orders in these proceedings.  Insofar as the application in a case for costs to be suspended or for costs to be ordered to be in the cause is concerned, the application in a case is to be dismissed.  
34.	With the granting of an extension of time conceded, albeit not as to the length of that extension, the respondents seek an order allowing them to tax their costs under order 3 of the court’s orders of 22 December 2014 forthwith rather than waiting until the matter is subject to final disposition.  Given that the costs were incurred in March 2014 and given the lapse of time since then and the further lapse of time arising from the extension of time to be granted, as indicated above, to 26 February 2015, it is appropriate, in the Court’s view, for the respondents to have those costs sooner rather than later.  There will, therefore, be an order that the respondents have leave to apply forthwith to a Registrar for taxation of their costs under order 3 of the Court’s orders of 22 December 2014, those costs to be taxed by a Registrar as soon as reasonably practicable.  
35.	With respect to joinder of the parties, the Court notes that Mr Sims’ Affidavit evinces an intention to seek to join other parties to the litigation or to the proceedings, but that is not the subject of any order sought in the application in a case and nor was it pressed at hearing today.  Absent a properly formulated application and statement of claim, it is not an application which the Court can or should presently entertain, and the Court will not presently make an order joining other parties to the proceedings.  It is a matter which might be revisited if an application and a statement of claim are filed in the form intended by the orders made on 22 December 2014.  
36.	The Court turns to the issue of judicial review.  The assertion in Mr Sims’ Affidavit that Mr Sims is seeking “judicial review” simply begs the questions of what and, if of the judgment in RM Capital (No.1), how?  If it is intended to evince an intention to appeal or possibly seek leave to appeal the judgment in RM Capital (No.1), then it is not an appropriate matter for any further observation.  
37.	There will be orders accordingly, and the Court will hear will hear the parties as to the costs of the application in a case and the hearing today.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Deputy Associate:  

Date: 4 February 2015.