Superior IP International Pty Ltd (Superior IP) has applied under s 459E(2)(e) of the Corporations Act 2001 (Cth) (the Act) to set aside a statutory demand served on it by Daniel Patrick Fox as trustee of the Ahearn Fox Unit Trust trading as Ahearn Fox Patent and Trade Mark Attorneys (Ahearn Fox). The fact that s 459E was mistakenly identified as the apposite section (instead of s 459G) provided a harbinger for what was to unfold in this application.
With more than 400 pages of affidavit material, one might have thought that there was a very considerable sum of money at stake in this dispute. Not so – it emerged from that affidavit material that the amount of the statutory demand was $10,706.33, involving nine invoices, most of which were for less than $1,000 and only one of which was more than the statutory minimum amount of $2,000.
At the commencement of the hearing, having noted that no genuine steps statement had been filed pursuant to the Civil Dispute Resolution Act 2011 (Cth) (the Civil Dispute Act), I inquired of the two lawyers whether they had made any attempt to try to resolve the dispute, in accordance with the objects of that Act and, one might add, their ethical obligations as lawyers. On being told that there had been no such attempt, I adjourned briefly to allow that to occur. This was to no avail.
By about this stage, I had the distinct impression that this dispute had descended into a squabble over who was to pay the costs that had been incurred thus far. Accordingly, I drew the attention of the lawyers to the provisions of Pt VB of the FCA Act and their duties to conduct this litigation having regard to the overarching purpose set out therein. This, too, was to no avail. Finally, bereft of any other means to force the lawyers and their clients to see some sense, I considered I had no option but to proceed to hear the matter.
The hearing lasted a full day, a large part of which was taken up with objections to the voluminous affidavit material described above. In keeping with their bellicose approach thus far, when I began to hear those objections, I discovered that there had been no discussion between the two lawyers to attempt to resolve any of them and thereby avoid both their clients’ and the Court’s resources being wasted on that exercise. To compound this situation even further, during the hearing of those objections it emerged, incredible as it may sound, that neither lawyer appeared to have a copy of the Federal Court Rules 2011 or the Evidence Act 1995 (Cth) with him in court. Thus, neither of them could tell me which section or rule he was relying upon to make particular objections.
The final travesty came at the end of the day’s hearing when, during submissions in reply, the lawyer for Superior IP sought leave to rely upon a large amount of additional material that he had not put forward earlier. When I say “final travesty”, I should add that there was a number of other less significant defaults on both sides that I have failed to mention (above) in the interests of brevity.
It hardly needs to be said that what I have just described is the absolute antithesis of the overarching purpose of civil practice and procedure set out in s 37M of the FCA Act.
Reeves J, Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys  FCA 282 (23 March 2012) -.