"Dugrey Ww cy 7 |b a ed /s PRACTICE AND PROCEDURE - asplication for injunction and damages for contravention of s.45D Trade Practices Act 1974 - interlocutory injunction granted - directions as to filing and service of statement of claim ~ directions not complied with - application for extension of time one month after expiry - supervisory role of Court under directions procedure - application under 0.10r.7 to dismiss proceeding - applicable principles - duty to proceed speedily where interlocutory injunction - discharge of injunction for delay in prosecution. Trade Practices Act 1974 s.45D Federal Court Rules 0.10 r.7 Birkett v James [1978] Ac 297 Allen v Sir Alfred McAlpine and Sons Limited (1968) 2 OB 229 Greek City Co. Ltd v Demetriou (1983) 2 All ER 921 CHARLIE CARTER PTY LTD v THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA, THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, FEDERATED CLERKS UNION OF AUSTRALIA, CLIVE BROWN, and JOE BULLOCK " - NO. WAG 74 of 1986 FRENCH J. PERTH 22 January 1987 hal the IN THO FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIAN DISTRICT REGISTRY GENERAL DIVISION BETWEEN: NO. WAG 74 OF 1986 CHARLIE CARTER PTY LTD APPLICANT and THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ' ASSOCIATION OF WESTERN AUSTRALIA First Respondent and THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH Second Respondent and THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION - Third Respondent and - - FEDERATED CLERKS UNION OF AUSTRALIA Fourth Respondent and CLIVE BROWN Fifth Respondent ~ and JOE BULLOCK Sixth Respondent JUDG NO MiNULL GE GROLER MAKING ORDER: FRENCH J. DATE Of ORDER: WHERE MADE: 22 January 1987 PERTH THE COURT ORDERS THAT: 1. The motion of the third respondent dated 9 December 1986 be dismissed, The applicant pay the third respondent's costs of the motion in any event. The orders of Toohey J. made on 3 November 1986 be varied so that:- (1) (2) (3) (4) (5) the applicant do file and serve on the respondents by 27 January 1987 a statement of claim; each of the respondents file and serve on the solicitors for the applicant a defence by 10 March 1987; the applicant file and serve on the respondents any reply to the defences on or before 31 March 1987; - any particulars of the statement of claim or of the defence be sought within 14 days of receipt of the pleading and such particulars be answered within 14 days of the request; the directions hearing in this matter be relisted for 9.15 am on 14 April 1987; (G) (7) Note with (See Ley) the applicant pay the second and third respondents' ue) costs of its motion dated 16 January 1987 in any event; a sealed copy of this order be served on each of the first respondent, fourth respondent, f1fth respondent and sixth respondent within 14 days of today's date and affidavits of service be filed within 7 days thereafter. : Settlement and entry of orders is dealt in Order 36 of the Federal Court Rules. also Order 37 rule 2(3).) IN THE FEDERAL COURT ) OF AUSTRALIA } ) ) WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 74 OF 1986 BETWEE N: CHARLIE CARTER PTY LTD APPLICANT and THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA First Respondent and THE TRANSPORT WORKERS UNION' OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH Second Respondent and , THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION . - Third Respondent : a and ; a FEDERATED CLERKS UNION OF AUSTRALIA Fourth Respondent _ and CLIVE BROWN Fifth Respondent and JOC BULLOCK Sixth Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 22 January 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The injunction granted against the second respondent on 23 July 1985 be and is hereby dissolved. 2. The applicant pay the second respondent's costs of its motion dated 13 January 1987 in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3).) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIAN DISTRICT REGISTRY GENERAL DIVISION BETWEEN: CORAM: FRENCH J. 22 January 19387 No. WAG 74 of 1986 CHARLIE CARTER PTY LTD Applicant and THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA First Respondent and THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH Second Respondent and THE AUSTRALIAN MEAT INDUSTRY - EMPLOYEES UNION Third' Respondent - and FEDERATED CLERKS UNION OF AUSTRALIA Fourth Respondent and - CLIVE BROWN Fifth Respondent and JOE BULLOCK Sixth Respondent 2. RLASONS FOR JUDGUENT The applicant in this case has carried on business for many years in Western Australia as a retail grocer. [It conducts some 25 supermarket stores in the Perth metropolitan area and has a central warehousing facility in the city of Perth. On 23 July 1986 the applicant filed an application in this Court seeking injunctive relief and damages against the respondents in respect of alleged contraventions of s.45D of the Trade Practices Act 1974. The application claimed in addition, and in the alternative, damages for interference with contractual relations, intimidation, nuisance and conspiracy. It appears that the application arose out of bans allegedly imposed on the applicant by reason of a change in its policy with respect to the hiring of casual staff. > No statement of claim accompanied the application but some 11 affidavits were filed with it. A claim for interlocutory relief was uncorporated in the application and was heard ex parte by Muirhead J. on the afternoon of 23 July. His Honour granted the injunction in the following terms :- 3. "An ainjurction 1s hereby yranted restraining the respondents and each of them by themselves, their servants and agents from imposing, maintaining, giving effect to or enforcing any ban on the provision of goods Or services to the applicant at either the head office or warehouse in Aberdeen Street, Perth or any of its retail stores in the Perth metropolitan area or from setting up or maintaining any picket line at or in the vicinity of such head office, warehouse and stores where any such ban or picket line has as one of its purposes and would have or be likely to have the effect of preventing or hindering the ordinary day to day activities and operations of the business of the applicant including:- (a) the delivery of any goods or services to any of the premises of the applicant; (b) doing any act by way of picketing or otherwise which in anyway obstructs or interferes with the passage of any person whether on foot or in a vehicle proceeding to or from any of the applicant's premises; (c) intentionally following any vehicle driven by any person to or from such premises; (d) threatening by words or conduct any person approaching or leaving such premises; (e) jostling, assaulting or threatening to jostle or assault any person approaching or leaving the premises; (£) standing in line on any roadway, lane or footpath ~ of vehicular or pedestrian traffic in such, a-manner as to hinder freedom of passage to or from such premises." An injunction was also granted restraining respondents and each of them by themselves, their servants agents from:- (a) aiding, abetting counselling or procuring any person or persons to engage in the aforesaid conduct; the and whee . (>) anducing or attemroting to aunduce a erson or persons whether by threat, promises or otherwise to engage in the aforesaid conduct; (c) being in any way either directly or indirectly knowingly concerned in or party to engagement in the aforesaid conduct; (d) conspiring with any other person or persons to engage in the aforesaid conduct. Liberty was given to the respondents to apply to set aside or vary the provisions of the order on five days notice. Copies of the application, supporting affidavits and the order made on 23 July were served on the various respondents on 24 and 25 July 1986. On 8 September 1986 a letter was sent to the Registrar of this Court by the solicitors for the second respondent — indicating their wish to apply to set aside the injunction in its application to the second respondent and asking that the matter be. ° relisted for further hearing. The motion to set aside the injunction was listed for hearing before Toohey J. on 18° aw September. At that time the applicant and the. second respondent were represented by counsel. There was no appearance for the other respondents. Y1is Honour cefused the motion to discharge the injunction but gave leave to the second respondent on 7 days written notice to apply to set aside or vary its provisions. The transcript of those proceedings show that counsel for the applicant undertook that within 21 days he would ask the Court to list the matter for a directions hearing. A letter requesting the listing of the matter for a directions hearing was sent to the Registrar on 9 October 1986 and a directions hearing was fixed for 2.15 pm on 3 November 1986. On that occasion it appears that all but the sixth respondent were represented. After hearing -counsel his Honour made orders which included the following:- "1. The applicant file and serve on the respondents solicitors by 15 December 1986 a statement of claim. -~ 2. Each of the respondents file and serve on the solicitors for the applicant a defence by 26 January 1987. 3. Any particulars of the statement of claim or of the defence be sought within 14 days within receipt of " the pleading and be answered within 14 days of the request." The directions hearing was adjourned to a date to be fixed. On 7 tlavember 1936 has Ponour, by consent, on a motion from the third respondent, made an order discharging the injunction to the extent that it applied to that respondent and reserved the costs of that motion. So far as the fourth respondent was concerned, there was also an order made that the injunction granted against that respondent be discharged and that the costs of his motion be reserved. At 15 December 1986 no statement of claim had been filed as directed by his Honour's order of 3 November. On 19 December the third respondent filed a motion returnable on 20 January 1987 for an order that the proceedings against the third respondent be struck out and that it pay the third respondent's costs. A similar motion was filed on 13 January 1987 on behalf of the second respondent, but also sought an order that the injunction granted against the second respondent be dissolved. On 16 January the applicant responded by filing a motion seeking an extension of the time limited for filing of a statement of claim for 14 days. When the matter came on for hearing before me on 20 January the applicant and the second and third respondents were represented, the motions not having been served on the other 7. a parties. Siter hearin y argument From counsel for all three, I adjourned the motions to 2.15 pm on 21 January to enable the applicant to file an affidavit explaining its non compliance with the Court's order. I also afforded to the second and third respondents an Opportunity to file any affidavit supporting their claims of prejudice by reason of the delay in the prosecution of the proceedings. No affidavits were filed by them. In an affidavit sworn on 21 January the applicant's solicitor set out the chronology of proceedings up to date indicating that he had started work on the first draft statement of claim and prepared successive drafts between 6 and 25 November 1986. Subsequently he sent to senior counsel, under cover of a letter of 11 December 1986, a draft with which he was happy, with a request that counsel settle 1t as soon as possible. In the affidavit he said:- oe \ "I was aware that I was going to run into time difficulties because of the order that I file a ' statement of claim by 15 December. My intention was to wait until the statement of claim was settled ... and then make application to the Court for an extension of time in which to file the statement of clazm, and then file the statement of claim as settled +e. with the application." Nothing further happened until 8 January 1987 when he received the third respondent's motion already mentioned and on the same day t2zlephoned counsel and left a message with his secretary about the motion and its return date asking 1f he could have the statement of claim settled in time to file it on the return of the motion of the third respondent. On 14 January he was telephoned by senior counsel who informed him that he was on vacation but had received his message. Senior counsel gave oral advice concerning the drafting of the statement of claim and informed the solicitor that he would be bach in his office on 19 January 1987. He was to have a new draft statement of claim ready for him to consider' then. Immediately after that conversation the solicitor set about making significant changes to the draft which in its altered form, was sent to counsel under cover of a letter dated 15 January' 1987. The affidavit went on:- ~ - "As a result of the foregoing I appreciate that I 'am in delay and I apologise to_this Honourable Court for my delay in dealing with the filing of the statement of claim herein. The matter is not easy.- It is most complicated. I could have filed a statement of claim which would have served the purpose of complying with the order, but in the knowledge that it would have required amendment to conform with what ... (counsel) . «ee had settled. Apart from any implications 'of dishonesty, in my experience such a step is fraught with difficulty and only occasions extra expense and delay. My philosophy is that you are far better off getting it right the first time. This minimises expense and delay in the overall context of the action." He also affirmed the applicant's intention to prosecute the matter to trial. SO er apr nee erKoN rere + woke amarns oo + w On the question of prejudice sufferea by the second and third resnondents, he maintains that there was none. fn relation to the injunction he contended that the order stopped the respondents from performing acts in themselves unlawful and he failed to see how this could prejudice those respondents. As to the bringing of the action to trial, he said the statement of claim would be filed as soon as settled by senior counsel ane in that regard he had spoken with counsel on the afternoon of 20 January and the morning of 21 January and had been informed that the statement of claim would be settled by him by close of business on 23 January 1987. The respondents' application is brought under 0.10 r.7 which provides in the following terms:- " "1. Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on . notice - . - w (a) if the party in default is an applicant - . . for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding; - - (b) if the party in default is a respondent -. For judgment or an order against him; (c) for an order that the step in the proceeding be taken within the time limited in that order. 2. The Court may make an order of the kind mentioned in sub-rule 1 or any other order or may give such directions and specify such consequences for non compliance with the order, as the Court thinks just. ray C2 3. This rules does not limit the powers of tho Court to punish for contemot." I have no hesitation in accepting the accuracy o£ the affidavit but with all respect, consider that it discloses a somewhat casual attitude to orders of this Court. It is in my Opinion, except in unusual circumstances or cases of trivial delay, not good enough to wait until the time limited by an order of this Court for taking a step in the proceeding has expired before application 1s made for an extension of that time. Such an application does not necessarily involve an attendance at this court. In cases where the extension sought is agreed 0.35 r.10 makes provision for a written consent to be filed in the Registry and, subject to the overriding discretion of the judge, for an order to be made in accordance with the terms of -the.written consent. The function of this Court in giving directions as to the time within which various steps shall be taken is not merely to set down a programme compliance with which 1s left in the hands > of the parties. It is an important feature of the Court's procedures that £rom the time at which an application is lodged, a date for a directions hearing is fixed and thereafter a degree of curial control and supervision over the progress of the proceedings is retained. il. I adopt the observation contained wn the renoct of Cranston and others published in 1985 under the auspices of the Australian Institute of Judicial Administration Inc on Delays and Efficiency in Civil Litigation in which it was said at para. 16.1:- "The modern trend in judicial administration 1s towards greater Court control as the way to reduce delay. The key element is early and continuous judicial control of cases so as to ensure compliance with the time limits established by the Court. Although the Courts should be prepared to reach reasonable accommodations with lawyers, they should be wary about allowing lawyers to breach the time limits established. In other words, the Courts should create among lawyers the expectation that events will occur when scheduled." Although this may be said in some quarters to represent an erosion of the adversary principle in litigation, it represents in my opinion, a proper recognition of a public interest in the expeditious disposition of cases. : Turning now to the disposition of the motions for the dismissal of the application, it is clear that this is not a \ —_ proper case for the imposition of such a draconian penalty. There may be a case for the dismissal of an action under 0.10 where the applicant's default has been intentional and contumellous or where there has been inordinate and inexcusable delay such that the respondent would be seriously prejudiced - Birkett v James [1978] AC 297, Allen v Sir Alfred McAlpine and Sons Limited (1968) 2 QB 229. bw te Under the Rules of the Supreme Court in England 0.18 r.l provides a time limit of 14 days within which the olaintiff£& must file his statement of claim after the defendant has given notice of intention to defend. Where this time limit is not complied with 0.19 r.1 provides for the defendant to apply to the Court For an order to dismiss the action:- "And the Court may by order dismiss the action or make such other order on such terms as it thinks just." In Greek City Co. Limited v Demetriou (1983) 2 All ER 921 the plaintiffs in two actions for copyright infringement having issued their writs obtained certain undertakings in lieu of interlocutory injunctions from the defendants. However they failed to file statements of claim within time as required by 0.18. The defendants applied to dismiss the actions. It was_held by Goulding J. that the failure to observe the time limit was not of itself to be treated as a default which was intentional and contumelious and an abuse of- the Court process. It was also a factor of some importance, according to Goulding J., that where the limitation period for the plaintiff's action had not expired he could, notwithstanding dismissal of his- action under 0.19, institute fresh proceedings with attendant waste and additional cost to all concerned. 13. Such consideratiens are &lso relevant in the case of default motions under 90.10 of the Federal Court Rules. It may be that the case for dismissal can be more readily made out where there has been non-compliance with an order of the Court, than where there has been non-compliance with a rule. This' case as I have already said however, is not a case for dismissal. It 1S not a case of abuse of process nor of intentional and contumelious default. There is no evidence that the respondents have been prejudiced in any serious way by the delay arising from the applicant's failure to comply with the time limited for filing of the statement of claim. . I do not therefore accede to the respondent's motion in that regard but have decided to allow the applicant's motion for } an extension of time within which to file a statement of claim. an The timetable must otherwise be varied accordingly and orders which were made by me in that regard at the conclusion of argument - are attached to these reasons. The question remains whether I should accede to the second respondent's motion that the injunction be discharged as against it. In the Greek City Co. case Goulding J. said al 928:- "It 1s elementary in the High Court that a party who seeks the equitable remedy = of injunction before questions of right and wrong have been tried between him and the defendant has to exert d2rligence and promptness. It happens every day that a plaintiff's application for interlocutory relief is refused because he has not come to the Court quickly enough. Logically it appears to me that, 1f he is given relief until the trial of the action, he 1s under a special obligation to get on with the action speedily because the defendant 1s restrained, 1zt may be justly or it may be unjustly but that cannot be known until trial. The plazrntiff undertakes in damages un the usual form but everyone who has practised in these courts knows that these undertakings do not always provide easy or adequate relief where the Court at trial finds in the defendant's favour." In this case the second respondent has been subject to the injunctions 1n question since 23 July 1986. That is for a period now of over six months. It is not sufficient in my opinion for the applicant to point to the fact that the second respondent took no steps to vary or discharge the injunction over particular ~ periods of time. It 1s as Goulding J. said, the applicant's special obligation in these circumstances to get on with the action speedily. Nor is 1t any answer to the motion to discharge the injunction to say that the second respondent cannot complain about the existence of a restraint on unlawful action. I re] in thetuer al} oF the conduct encompassed by the terms of the injunction is unlawful 1s in my opinion, debatable. The injunction exposes the second respondent to sanctions for non-compliance at a time when the rights and wrongs of the behaviour enjoined have not been determined. In my opinion the continuance of such an order can usually only be justified where there 1s diligent prosecution of the proceedings on the part of the applicant. In the circumstances I am of the view that the injunction should be discharged as against the second respondent and I so order. In doing so, it must however be made clear that it will be open to the applicant to apply for fresh interlocutory injunctive relief pending the hearing of the application should there be a recurrence of the conduct which grounded the grant of the injunction on 23 July. . I therefore accede' to the second respondent's motion to discharge the injunction in its application to the second respondent but do otherwise dismiss the motions of the second and third respondents in so far as they seek the dismissal of the application as a whole. The costs of those motions will be the respondents in any event. we ay AS to Lc aprlicant's «ution for en extension of time within which to file a statement of claim, I allow that motion and vary the timetable in accordance with the attached orders. The applicant must also pay the respondents' costs of that motion. TI would expect however that the costs would be taxed as one set. I certify this and the fifteen (15) preceding pages to be a true copy of the Reasons for Judgement of His Honour Mr Justice French. Y, Y Associate: Date : 22 January 1987 Counsel for the Applicant : Mr Nisbet instructed by Ilbery Barbliett & O'Dea Counsel for the Second Respondent: Mr Le Miere instructed by Dwyer Durack and Dunphy Counsel for the Third Respondent: Mr D. Schapper instructed by D.. Schapper. Makan oF Naarinws 2770 Tani rrss LTO907F7