v a * 309 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 302 of 1984 GENERAL DIVISION BETWEEN : RITCH ENGINEERING PTY. LTD. Applicant and MULTICO INTERNATIONAL PTY. LTD., BRIEN BARTHOLOMEW HAVES and GEORGE KOSMOS TETIS Respondents COURT: NORTHROP J. DATE: - 23 JUNE 1986 PLACE: MELBOURNE MINUTES OF ORDER THE, COURT ORDERS THAT: 1. The date fixed to commence the hearing of this matter, namely, 30 June 1986, be vacated. 2. The respondents pay the applicant's costs of the motion. 3. The applicant's costs thrown away as a result of this order be reserved. 4, Liberty to apply. 5. The matter be set down for hearing on Monday, 29 September 1986. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) * Not considered appropriate for further distribution. wm ' teeta teeeaaer Peel alan a ane r > : * ree IN THE FEDERAL COURT OF AUSTRALIA V. No. G 302 of 1984 <j KH [ol | fe} ps) Lae HedrH td) td ian aq KH A (a) eS wie BETWEEN : RITCH ENGINEERING PTY. LTD. Applicant and MULTICO INTERNATIONAL PTY. LITD., BRIEN BARTHOLOMEW HAYES and GEORGE KOSMOS TETIS Respondents COURT: NORTHROP J. DATE: 23 JUNE 1986 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT There is before the Court a motion that the date fixed for the hearing of this matter, namely 30 June 1986, be vacated. There is much material before the Court by way of affidavit both as to the history of this matter and more importantly, the events which have occurred over the last four weeks or so in relation to the bringing of witnesses to Australia who are presently resident in the United Kingdom. It appears that the representations made upon which the present action is based were made to persons in the United Kingdom by conversations in the United Kingdom, and sey e een Toe ao oo ye oo! oT , oa aia nemedaned Lair pea oo 7 Ree et ee eee Ee eens we te - cout. possibly also by mail and telephone, to those persons in the United Kingdom. As a result of this, a company in the United Kingdom engaged in activity in that country which caused the applicant a large amount of expense to prevent and take steps to cure by way of rectification of certain records in the United Kingdom. Arising out of those representations and based upon the Trade Practices Act, the applicant is bringing proceedings in Australia against the respondents, being a corporation, and two directors of that corporation. It appears further that a third person, a Mr. Colin Hayes, whose connection with the company is not absolutely clear, at least was present during some of the time when representations were made and may have himself made representations as an agent for Multico International Pty. Ltd. The applicant is desirous of calling as a witness a Mr. Benny, bezng the person to whom the representations were made and the person being the director of the company which then engaged in the activities in the United Kingdom. Mr. Colin Hayes also is in the United Kingdom. Both Mr. Benny and Mr. Hayes are, from what I have seen so far, essential witnesses to this action. This immediately gives rise to the problem of the obtaining of evidence from persons who are not within the jurisdiction, in this case Australia. This Court has no power to order the issue of subpoenaes to compel persons like that to attend to give a ee ae een oo = evidence, and it seems that the two most common ways of obtaining evidence from persons in that position is either by way of evidence on commission in the United Kingdom, or by arranging the voluntary attendance of those persons in Australia in order to give evidence. Because of the unusual features of this case and the position of the witnesses, a special fixture was arranged for the hearing of the action on the basis that a large amount of time would be given to enable the parties to make those arrangements to get the witnesses present. A tentative date was fixed for 30 June 1986 and notice of that tentative date was given in March, towards the end of March 1986, but formal notification of the date was not given until late in May when notice was qiven by letter to the applicant's solicitors, and the respondents' solicitors did not know until earlv June that the date, 30 June 1986, was a fixed date. This practice illustrates two matters. Firstly, the undesirability of fixing dates for hearing apart from a callover, the practice of the callover being one which is now adopted by this Court in Victoria when dates are fixed for hearing in the presence of legal practitioners of the parties and in the circumstances when both parties know the date on which the matter will be fixed for hearing. The other matter illustrates the problems arising where there is the passing of information from Judges' associates to legal practitioners for the parties. Whenever this is done there is always room for doubts and difficulties arising and this is a perfect example where possibly because of misunderstandings, difficulties have arisen as to whether 30 June 1986 was a fixed or tentative date for the hearing of this matter. If that date was to be a fixed date, there seems to have been an inordinate delay before formal notification was given by the registry to the parties, and even then there appears to be one letter only to the applicant's solicitors, not to the respondents' solicitors. I merely make those comments by way of background material before I turn to the matters which are the essential matters for consideration in relation to the present motion. I note the long history of the matter as appearing in the affidavit of Mr. Steven, but in my view, the early history has no bearing on this matter in the absence of anv other motion in relation to the applicant having judgment entered for default or some order of that kind. Iam not prepared to make any finding on the material before me that the respondents either by themselves or through their solicitors are engaging in any course of action designed to defeat the bringing on of this action for hearing. As far as the applicant is concerned, it has had difficulty in arranging Mr. Benny''s attendance in Australia. Those arrangements have been made and Mr. Benny is due to leave England later this afternoon Australian time. He does not live in London, but will spend about four hours or so to get to London and there may be difficulties in stopping him op cere seo ome . epee eee nee ar etal -r ke re ae en eqeq 986T Sune 7 "BHP DDI] TIN PPO *UOH OU} FO uTETEY jUA oh pur Joy suoseey aly Jo 2 ore seabed futpeserd (7) amoy sy pue Stuy FeUuR AJTWSO T &doo enzr. \ *doazujzoy eorqsne 'aw A Mis) departing from London although that, in all probability, should be done and could be done by means of urgent messages left for him at Heathrow. There is also the danger that it may be difficult to arrange for Mr. Benny to come to Australia later this year. As opposed to that, I am satisfied, on the material before me, that since the beginning of this month the solicitors for the respondents first knew of the fixed date for hearing being confirmed and have taken all reasonable steps to arrange for Mr. Colin Hayes to be present in Australia for the purpose of giving evidence, that Mr. Hayes will not be here for reasons which he has set out in his affidavit and it is not for this Court to decide whether those reasons are adequate or not. It is sufficient to sav that on their face they appear to be reasonable explanations as to whv he will not come on this occasion and I think it would be unfair to the respondents to compel the hearing of the matter in the absence of Mr. Colin Hayes. In all the circumstances, it seems desirable that the hearing date should be vacated, but that a new date be fixed for some tame after the beginning of September which would give ample time to the parties to make arrangements for the witnesses to be present for that hearing. If there are going to be difficulties in getting one or other of the witnesses into Australia, it may be necessary for the parties to explore other methods by which the evidence could be obtained and accordingly, there will be liberty to apply in relation to this matter generally.