[iubement No. 3b. /S1. IN THE FEDERAL COURT OF AUSTRALTA ) VICTORIAN DISTRICT REGISTRY ) No. VG118 of 1387 GENERAL DIVISION } THE COURT ORDERS THAT: 1. BETWEEN: AMUST. COMPUTER CORPORATION PTY. LID. , X.A.B.S. PTY. LTD. , ROBERT ALAN KNOWLES , ANTHONY RICHARD WARR , GARY WILLIAM SMITH, CALDANDRA PTY. LTD. and PETER BENNETT COBURN Applicants AUSTRALIA ENTRE BUSINESS CENTRES PTV. LTD., ENTRE COMPUTER CENTERS INTERNATIONAL INC., ENTRE COMPUTER CENTERS INC, JAMES DUDLEY GALLAGHER, JAMES JOSEPH WEBSTER and KERRY GEORGE DENNA E Respondents MINUTE OF ORDER Jenkinson J. Melbcurne 12 November, 1387 The costs of Entre Computer Centers Ine. of entering conditional appearance and or the motion of which notice was filed on 10 September 1987 other than its costs of the hearing of the said moEion on 30 September be paid by the applicants Amust Computer Corporation Pty. Ltd., X%.A.B.S. Pty. Ltd., Robert Alan Knowles, Anthony Richard Warr and Gary William Smith. The said applicants' costs of the hearing of the said motion on 30 September 1987 and any other costs of the said applicants rendered abortive in consequence of the order made on that said day for adjournment of the said ne ord rer se Te RO 2. hearing be paid by Entre Computer Centers Inc. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION BETWEEN : CORAM: Jenkinson J. DATE: 12 November, 1987 ) ) No. VG118 of 1987 ) AMUST COMPUTER CORPORATION Pty. LTD.» X.A.B.5. Pry. LTD. ROBERT ALAN KNOWLES, ANTHONY RICHARD _WARR, GARY WILLIAM SMITH, CALDANDRA PTY. LTD. and PETER BENNETT COBURN Applicants AUSTRALIA ENTRE BUSINESS CENTRES PTY. LTD., ENTRE COMPUTER CENTERS INTERNATIONAL INC., ENTRE COMPUTER CENTERS _INC., JAMES DUDLEY _GALLAGHER, JAMES JOSEPH WEBSTER and KERRY GEORGE PENNA Respondents REASONS FOR JUDGMENT On 28 October 1987 a motion on the part of the third-named respondent for an order that the originating process be set aside as against was on notice filed on 10 September that respondent was granted. The motion 1987 pursuant to an order which I had made on 4 September 1987 that any such a motion he heard on 30 September 1987. that any affidavits in support of copies served on or before 18 September Directions were by that order given such a motion he filed and 1987 and that any 2. affidavits in opposition to such a motion be filed and copies served on or before 25 September 1987. Affidavits in support of the motion were served several days after 18 September 1987 and an affidavit in opposition was served on 29 September 1987. When the motion was called on for hearing the next day counsel for the third-named respondent sought an adjournment so that affidavits could be procured in answer to evidence contained in the affidavit of which a copy had been served on 29 September 1987. The adjournment was granted, another motion in the proceeding was heard and the hearing of the third-named respondent's motion commenced on 9 October 1987. Counsel for the applicants offered no opposition to an order that the third-named respondent's costs of its motion, other than the costs of 30 September 1987, be paid by the applicants. But he submitted that the third-named respondent should be ordered to pay the applicant's costs of that day, which had been in his submission thrown away by reason of the adjournment granted at the third-named respondent's request. The matters concerning which the third-named respondent then desired to procure further affidavits were matters which had been canvassed in affidavits filed and read in support of the applicants' motion for leave to serve the originating process on the second and third-named respondents out of the jurisdiction, a motion granted in pursuance of 0.8 R.2 on 5 August 1987. Counsel for the applicants submitted that any affidavit concerning any of those matters should have been filed and a copy served on or before 18 September 1987. Counsel for the third-named respondent's response was that no copy of any of the affidavits filed in support of the motion for the order made on 5 August 1987 had ever been served on his client, nor had notice been given Fo 3. before 29 September 1987 of the applicants' intention to read any of those affidavits in opposition to the third-named respondent's motion. In those circumstances it was submitted on behalf of that respondent that it had been entitled not to concern itself with any material which might have been filed before it was served with the originating process and to assume, until 29 September, that the whole of what the applicants would adduce in evidence on the hearing of its motion would be served on or before 25 September 1987 in compliance with the order I had made on 4 September 1987. Applications of the kind which the third-named respondent made by its motion - for the setting aside of an order made ex parte for service out of the jurisdiction and for the setting aside of the process served or for the setting aside of that service - have long been familiar procedural steps in civil litigation in England and in the States of the Commonwealth. My understanding of the practice is that, although orders authorizing service out of the jurisdiction do not ordinarily direct that the affidavits upon which the order was granted be served on the party to be served, those affidavits form part, if not the whole, of the evidence on which applications for setting aside are determined. That understanding underlies the reasoning of Pape J. in Hartwell Trent (Australia) Pty. Ltd. v. Tefal Societe Anonyme £1968] V.R. 3 at 4-9, as In think. There is nothing in the Rules of this Court to suggest that the practice of this Court might be different. 0.14 R.7 provides: "(1) A party intending to use an affidavit shall serve it on each other interested party not later than a reasonable time before the occasion for using it arises. gs et a ee 4, te pet ¥ "ye te ——— (2) The Court may give directions concerning the service of affidavits." The practice of having regard to the affidavits which grounded the order for service out of the jurisdiction on the hearing of an application to set aside the order or the service or the originating process served was established in Courts which had similar rules, which I think were honoured most often in the breach. A person moving to set aside originating process served on it outside the jurisdiction ought in my opinion to be taken to have notice from the making of the order for that service that affidavits which grounded the order will be read in opposition to his motion. However that may be, the orders I made on 4 September fixed, inter alia, the time for service of affidavits. Although the orders were not made by consent, the third-named respondent's counsel did not argue against the times fixed. The third-named respondent was thereby bound to wait until Friday 25 September for formal notice of the evidence on which the applicants would rely on the hearing of the motion fixed for hearing on Wednesday 30 September. If counsel for that respondent were correct, as I do not think he is, in his submission that his client need not suppose that any affidavit hut those to be served on it might be used against it on the hearing of the motion, it had been willing to wait until that Friday for information as to the contents of those affidavits, notwithstanding that some of those from whom it might need instructions or evidence were resident in the United States of America. The applicants failed, in the result, to comply with the order for service of their affidavits by 25 September. But the third-named respondent had failed also in dee eee compliance with the order for service by 18 September 1987. September the adjournment sought was of about a week's In all the circumstances 5. On 30 duration. I think that the applicants should have an order for payment of any costs occasioned by the adjournment of the hearing of the motion granted on 30 September 1987. Counsel for the Applicants Solicitors for the Applicants Counsel for the First and Third-named Respondents Solicitors for the First and Third-named Respondents Date of Hearing I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. Dated: 12 November, 1987 Mr. N. Lucarelli i Barton & Partners Mr. P.J. Jopling Arnold Block Liebler he 28 October, 1987 | J