f IN THE FEDERAL COURT NOT INTENDED FOR GENERAL DISTRIBUTION ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) ) GENERAL DIVISION NO. WAG 54 of 1985 BETWEEN: BURSWOOD MANAGEMENT LIMITED and WEST AUSTRALIAN TRUSTEES LIMITED Applicants and BURSWOOD CASINO MOTEL/HOTEL PTY LTD First Respondent and FRANCESCO BEMPASCIUTO Second Respondent ry and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Third Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 7 August 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. By 4 pm on Monday, 10 August 1987, the Respondents be provided with a list of documents from those discovered which are intended to be relied upon by the Applicants at trial. eee menen su: betaelicaneneliiendindma we bomeree Sor eee cree ee rete at cee ae 2. Copies of such documents be made available to the Respondents at the Applicants' expense on Monday 10 August 1987. If the Applicants should intend to adduce copies of any document in the supplementary list in evidence before 4 pm on Monday, copies be provided to the Respondents prior to the opening of the case by counsel for the Applicants. The Applicants pay the Respondents' costs of the motion. There be liberty to apply at trial for any further necessary directions. Messrs. Burke, Dans, Jarman, Semmens and Shimmon not be required to attend in answer to their subpoenas prior to 10.15 am on 18 August 1987. Note: Settlement and entry of orders is dealt with in Rule 36 of the Federal Court Rules. Ren rn wom errr ro we NOT INTENDED FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION NO. WAG 54 of 1985 wee ww BETWEEN: BURSWOOD MANAGEMENT LIMITED and WEST AUSTRALIAN TRUSTEES LIMITED Applicants and BURSWOOD CASINO MOTEL/HOTEL PTY LTD First Respondent and FRANCESCO BEMPASCIUTO Second Respondent and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Third Respondent CORAM: FRENCH d. 7 AUGUST 1987 EX TEMPORE REASONS FOR JUDGMENT The respondents move to vacate the hearing dates fixed for the trial of this application on the 10, 11, 13, 18 and 21 August 1987. The motion arises out of the late discovery by the applicants on 5 August 1987 of a significant number of additional documents. The documents as appear from a list subsequently filed in the court, relate largely to promotional material and newspaper = one rr ee ro eee AN 8 re repens ereny: wee oe — 2. articles concerning the Burswood Island Casino. There are, according to the solicitor for the respondents, some six volumes in lever arch files of press clippings covering the period between February 1985 and 20 March 1987 numbering in excess of 1,000 pages; and three further lever arch binders containing press clippings from September 1985 to June 1987 numbering about 650 pages. There were also, it is said, five VHF video tape advertisements each running for some 30 minutes; 21 promotional pamphlets of varying size and two large bundles of miscellaneous press clippings for the years 1984, 1985 and 1986. In addition, there was a print production works folio of over 50 pages, containing press clippings and four substantial sketch books containing numerous press clippings. He estimated the documents to be in excess of 2000 pages. Further, he said, there were some five sets of architectural drawings. In explanation of the last minute discovery of these documents, Mr Bishop, a solicitor employed by the solicitors for the applicant, has filed an affidavit in which he said that he had been told by the supervising partner, Mrs Gillon, that the matter was listed for hearing before Toohey J. in February 1986 and an adjournment was sought at the last moment. Between that time and the time when a letter dated 23 July 1987 was received from the present solicitors advising they acted for the respondents, there had, he was told, been no communication received from any solicitors acting for the respondents. sme cin deartadeneniees Sak aetna Saree eee 3. So far as the applicants were aware, he said, the first and second respondents did not have legal representation. He was informed by his supervising partner and believed that the application was fixed for hearing for two days on the basis that it was not expected that there would be any serious defence maintained by the first and second respondents. There had been no application to dissolve or vary the interlocutory injunction granted in June 1985 and there was, he said, no sign that the respondents intended to play any significant part in the hearing. It was only on 23 July when the present solicitors acting for the respondents advised of their appointment and took various interlocutory steps that it became apparent that the final hearing of the proceedings would be a serious contest. On that basis, counsel, Mr Archer, was retained to act for the applicants and to appear at the hearing and it was as a result of advice given by him that the additional documents were collected. On Tuesday, 4 August 1987, the Court was advised that the applicants would be filing a supplementary list. It is evident that the documents contained in the list and supplementary discovery relate to the reputation of the name "Burswood Casino" and that is a matter which, as is apparent from the pleadings, has been in issue from the beginning. the failure of the applicant to discover these documents hitherto is curious, but evidently arises from a failure to appreciate their relevance to the issue of reputation. aentaalia ry See renal "ston 4. On the other hand, it may be said that it was open to the respondents before today, and this is no criticism, I might say, of Mr Stokes, to appreciate the likely existence of promotional materials relevant to reputation and to take steps to ensure that discovery was complete. The trial is now set down for hearing on five days spread over two weeks before a visiting judge. I am not satisfied that the late discovery of the documents results in such incurable prejudice to the respondents, particularly having regard to their nature, that the trial date must be vacated. In my opinion, however, the situation does give rise to a need to give directions to ensure that so far as possible the impact of that late discovery is mitigated and I propose to make orders accordingly. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French. Associate: Deleon UWRite pate: 7] Prgnart ([F&7 ns wit! Oe ee eee . '--— Vee =e Be ee ee, mene "py eee oe * — 7 7 » baal. Hl. re renga enen so een 5. Counsel for the Applicants: Mr S. Archer Solicitors for the Applicants: Robinson Cox Counsel for the First and Second Respondents: Mr B. Stokes Solicitors for the First and Second Respondents: Associates. Date of Hearing: 7 August 1987 Date of Judgment: 7 August 1987 B.F. Stokes & "er Serr nrnae ayes ree, a pera