BD IH_THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 36 of 1986 GENERAL DIVISTON BETWEEN : THE AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION, JACK 0O'TOOLE, TREVOR SURPLICE, DICK ANNEAR, PAT ROUGHAN Applicants AND: MUDGINBERRI STATION PTY. LIMITED Respondent MORLING J. 23 June, 1986 EX TEMPORE REASONS HIS HONOUR: This 1S a notice of motion which, in substance, raises three matters. First, that the date for the hearing of this matter be vacated; secondly, that the respondent give further and better discovery; and thirdly, that the applicants be given leave to administer interrogatories outside the time that has been limited for their administration pursuant to directions given by Mr Justice Gray on 14 April 1986. I do not have any difficulty with the first matter. For reasons which it is unnecessary to go into this morning 1t does seem to me to be desirable that: <phe present proceedings be heard and determined as soon as Ue I few! ) 30 JUN 1986 FEDEN * to possible. The applicants have sought to have these proceedings heard before matter No. G 123 of 1985 is concluded. They have asked me not to conclude the hearing of that matter by delivering my reasons until matter No VG 36 of 1986 has been heard. When I fixed this matter for hearing on 1 July, at was my understanding that the applicants were anxious for the matter to be heard expeditiously and certainly before I decided G i123 of 1985. I had no wish to force a premature date on them or on the respondent. I. think that date may be too early and I propose to vacate it. I shall defer for the moment the fixation of another date for the hearina. As to the second matter - 1.e. the request for further and better discovery. counsel for the respondent points out that his client's affidavit of discovery was filed and served on 29 May and that no complaint was made about its alleged inadequacy until 17 June. In answer, counsel for the applicants point out that there has been an appeal pending against Mr Justice Gray's decision not to strike out the applicants' claim. They submit that the pendency of that appeal led to the applicants not raising at an earlier point of time the alleged inadequacy of the respondent's affidavit of discovery. w I can understand that attitude to a certain extent. However, bearing in mind that it must have been apparent to the applicants that the respondent is anxious to bring this litigation to an end and also bearing in mind that the appeal (if it had proceeded) could well have been heard within the next day or so it was unwise for the applicants to refrain until 17 June from complaining about the alleged inadequate discovery. However, the attitude taken by counsel for the respondent enables me to deal with the matter without much contention and in a manner which will not cause any prejudice. In the schedule to the notice of motion. the applicants list some 11 categories of documents which they seek to have discovered. Most of the documents referred to in 8 of those paragraphs (paras. 1, 2, 5, 7, 8, 9, 10 and 11) have been produced in court this morning and copies have been made available to the applicants. Counsel for the respondent has stated that some of the documents sought by the applicants exist as part of records which have been produced. Counsel has also stated that there is no document answering the description of the document referred to in para. 6 of the schedule. 4. As to the documents referred to in paras. 3 and 4, 1t 15 said that these documents cannot be located. There 1s a dispute between the parties as to whether they have been produced in proceedings No G 123 of 1985 but I think it is unnecessary to embark upon the resolution of that dispute. I am informed by counsel for the respondent that a search 1s still being made for the documents and that 1f they come to light they will be provided to the applicants. I think that search should proceed as quickly as possible, but I do not think that the failure to produce them (if they exist) should delay the hearing of the matter. What I propose to do 1s to direct the respondent to file a further affidavit verifying those documents that have been produced today. In view of Mr Pendarvis' absence in Mudginberri I do not think that any prejudice will occur if the affidavit is not sworn until the coming weekend and given to the applicants' solicitors on Monday. I turn now to the question of interrogatories. This matter does cause me more concern. I am far from being persuaded that the applicants could not have formulated their interrogatories (or most of them) well before today. Also they should have approached the court for an extension of time for complying with Mr Justice Gray's wv. 5. direction that interrogatories be filed and served on or before 6 June. The pendency of the appeal did not justify delay in that regard because the appeal could well have been heard this week and the matter could have been heard swiftly thereafter if the appeal had failed. Moreover, having regard to the exhaustive cross examination of Pendarvis and other witnesses 1n G 123 of 1985 I seriously question whether this 1s an appropriate case for interrogatories . Nevertheless. I do not think I should ignore the fact that an appeal was pending and that there was some basis for the applicants believing that the case might not proceed to a hearing on the merits. I therefore propose to extend until 5 pm on 27 June the time referred to in para. 8 of Mr Justice Gray's directions of 14 April. Any interrogatories are to be served and available to counsel in Sydney by that time. I fix that time because I propose to vary the time referred to in para. 9 of Mr Justice Gray's directions to 2 pm on Wednesday 2 July. The one outstanding matter is the availability of the records referred to in paras. 3 and 4 of the schedule to the notice of motion. Iam not to be taken as excluding the applicants from making an application to rei, Ieertify that this andthe fwe (S) preceding pases are a true cop¥ of tha Reasozs for Judzment herein of his Hongur Mr. Justice Lorling Dated: 23 June Ib 6. further interrogate the respondent should those records come to hand. However, I do not think the absence of the records will prejudice the applicants in the presentation of their case. They have to live with their own tardiness in failing to approach the court for extension of time to interrogate. I propose to reserve the question of the costs of today for decision by the trial judge, whoever he is, but I will hear the parties on that question 1f they wish to address me on it. There being no opposition from counsel for the respondent, I make an order in terms of para. 2 of the notice of motion (dated 20 June 1986). I fix Monday 7 July for the return of subpoenaes. I reserve liberty to apply on three days notice. The matter is fixed for hearing on Monday, 14 July 1986. Liberty to restore the matter to the list on yr directions. Miklle libelle Mec{