v te "ee IN THE FEDERAL COURT OF AUSTRALIA } . NEW SOUTH WALES DISTRICT REGISTRY No. G 337 of 1984 * GENERAL DIVISION } . BETWEEN : GUILD MANAGEMENT SERVICES PTY. LIMITED First Applicant NETA PTY. LIMITED Second Applicant NORMAN WINSTON HEPBURN Third Applicant : AND: CREDIT REFERENCE ASSOCIATION OF AUSTRALIA LIMITED Respondent a 9 AUGUST 1985 REASONS FOR JUDGMENT B: LOCKHART J. sso This is a proceeding which was commenced on 21 September 1984 by the filing of an application of a statement of claim in this Court. eyes gy ee nee The claim is for injunctive relief pursuant to s. 80 of the Trade Practices Act 1974 and for damages pursuant to s. 82 and for relief ~-- 4, under s. 87. The claim is "based upon alleged contraventions of the may consumer protection provisions of the Trade Practices Act, and in io 2. brief, as I understand it at this stage, it ts essentially a claim that in 1981 the applicants or some of them sought finance from various finance companies in this country. These companies in turn referred to the respondent for credit references in relation to the applicants. It is the vrespondent's business to provide credit information on request to its members. It is alleged that the respondent did furnish information to the various finance companies from which the applicants had sought loans, and it is said that the information provided was false and constituted in the circumstances misleading and deceptive conduct, thereby contravening the Trade Practices Act. The case has had an unfortunate history in, that the matter has been the subject of directions on at least four occasions, and, without traversing what occurred on each of those occasions, it is clear that among the directions given were directions that the applicants furnish further and better particulars of the statement of clain. This was done eventually, though not in accordance with initial directions of the court, by letter from the solicitors for the applicants dated 16 April 1985. In that letter certain particulars sought were given, but the response of the solicitor for the applicants was not confined to that. It was said by him in relation to certain requests for Particulars that they would not be provided as they were matters of evidence, or that they sought information that ry mower ee yee 3. was not necessary to enable the respondent to "plead to the statement of claim, or that the applicants would provide the material sought after discovery and interrogatories. This is not exhaustive of the subject matter of the reply to the request for particulars, but is a fair illustration of it. The solicitors for the respondent then took out a notice of motion, which was returnable today, seeking an order that the application and statement of claim be struck out for want of prosecution or, alternatively, that the proper particulars of the statement of claim be furnished by the applicants. This is the first occasion on which the court has really been asked to look at this matter, other than ina very brief manner indeed, and it seems to me that the best way to bring this case on for hearing and to save further delays and misunderstandings is to give directions for the further conduct of the matter which will be in substitution for those previously given. It is I think regrettable that at a very early stage in the case the applicants did not make it clear to the respondents that they had difficulties in furnishing some of the information * sought at that stage of the case by reason of the very nature of the case itself. However, that was not done and it seems to me the matter has, therefore, gotten a little out of hand. The particular directions that I propose to give" have been discussed with counsel Tand they are not objected to, either as to their content or the time within which they are to he discussed. I Payney r4 \ woh ST Segre a ae ee wee oo 4, must emphasise, however, that these time limits must be complied with and that in the circumstances if they cannot for some reason be complied with, I expect the party who cannot comply with them to have the matter restored to the list before the expiration of the relevant time, and give evidence as to why there is no compliance. [I will make no specific direction in this regard but it must be understood as inherent in the directions. Accordingly, the Court gives the following directions: 1. The respondent is to file and serve its defence within 21 days of today. 2. The applicants are to file and serve their, reply, if any, within a further period of seven days. 3. The parties give mutual discovery of documents, verified by affidavit within a period of seven days after the expiration of the time limited for the filing of any reply. 4. The parties give inspection of documents within a further period of seven days. 5. The parties deliver interrogatories that they seek to administer to any other party within a further period of 21 days. % pute eee er eee et Sp ern cee Mt WIEDER — om ese me ee eee eee eee: : ZL ty Sat - , "aT ' Ler 5. 6. Verified answers to interrogatories be filed and served within a further period of 21 days. 7. The matter will be listed for further directions on Friday, 29 November 1985, at 9.30 a.m. and any party is at liberty to restore the matter to the list in the meantime on two days notice. There remains the question of costs. Counsel for the respondent seeks an order that the respondent's costs of the notice of motion and the respondent's costs of the directions hearings held on 22 February 1985, 1 March 1985 and 12 duly 1985 be paid in any event by the applicants. Those orders are opposed by counsel for the applicants. The notice of motion seeks as its first order that the application and statement of claim be struck out for want of prosecution, which no doubt contemplates the application of Order 30 rule 5. Yet when the motion came on for hearing this morning, counsel for the respondent informed me that in effect he wished to have the motion treated as if it were one based upon the failure of the applicants to comply with the Court's previous directions, reflecting Order 10 rule 7. That is not the way the notice of motion was framed, nor how the intention to bring it was communicated to the solicitors for the applicants, as appears from the evidence in the case. Accordingly, I7 will not be striking out the applicant's pleadings. Nevertheless the course that I have taken in the interests oe 6. a of convenience and justice between the parties does not suggest that the respondent was not entitled to bring appropriate proceedings with a view to striking out the statement of claim. Were the motion to have been based, as I think it should have been based, on order 10 rule 7, then in the circumstances, I would have been disposed to order that the applicants pay the costs of the respondent of the notice of motion. However, I think in all the circumstances, notwithstanding the formulation of the notice of motion or the way in which the intent to bring it was communicated to the solicitors for the applicants, I am satisfied that the applicants would have been on notice that their prior default engendered the application for the notice of motion even if not entirely appropriately framed, and I think the proper order is that the applicants pay two-thirds of the costs of the respondent of the notice of motion. I do not think it would be proper to order that the applicants pay the respondent's costs in any event of the three earlier directions hearings to which I have referred. No doubt they will be dealt with in the usual way when the case is finally disposed of. Accordingly, the additidnal orders I make are that the applicants pay two-thirds of the respondent's costs of the notice of tice of motion motion filed on 5 August 1985 and that 'otherwise the be dismissed. | certify that this and the Five (s) preceding pages are a true copy of the Raasons for Judgment herein of his Honour Mr. Justice Lockhaft. . Rontin dork, Assocyata . a tt Ste ait eed ne i BS