NOT FOR DISTRIBUTION JUDGMENT No.2! =ySSx © cteseseed IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) T. Nos. G 2 and 3 of 1987 ) GENERAL DIVISION ) BETWEEN: R. R. AND S. M. POWELL PTY. LTD. Applicant (Respondent) and CAFIKE Pry. LTD. Respondent (Applicant) COURT: NORTHROP J. io JN : 4 FEBRUARY 1989 RECEIVE 1 1FEB 1988 DERAL COURT OF PEO AUSTRALIA PRINCIPAL REGISTRY PLACE: HOBART EX TEMPORE REASONS FOR JUDGMENT There are listed for hearing today before me two actions, namely, T. No. G 2 of 1987 and T. No. G3 of 1987. In the first action the applicant is R.R. and S.M. Powell Pty. Ltd. ("Powell"), and the respondent is Cafike Pty. Ltd. ("Cafike"), trading as the Port Arthur Cider Company; that action was commenced on 4 March 1987 and was based upon 5.52 of the Trade Practices Act 1974 in relation to the use by Cafike of the word "Grove" in relation to fruit juices. The second action was commenced by Cafike and the respondent is Powell, and, in addition to claims based upon 5.52 of the Trade Practices Act, claims are made for damages for breaches of contract as well as damages under other causes of action, As a result of directions given, the matters have proceeded basically in T. No. G 3 of 1987 and in that action there has been further pleadings by Cafike, a further defence by Powell, a cross-claim by Powell, and a reply and defence to cross-claim. The issues between the parties are very wide and cover very many causes of action coming within the original as well as the accrued jurisdiction of the Federal Court. The matters have had an unfortunate history in that although the actions were commenced in March of 1987, the yoint matter has proceeded rather slowly. Despite a number of directions hearings, the parties had not always complied with directions given. The last directions hearing was held on 27 October 1987. At that hearing the Court was assured that the matter would be ready for trial by 2 February 1988. As a result, certain directions were made, including a direction that any reports of experts be exchanged by 23 December 1987 and that a date be fixed for hearing, being a date not before 2 February 1988, and also liberty to apply was granted. It is apparent from material before the Court that there has not been compliance with earlier directions in relation to the giving of particulars and the giving of inspections and the giving, even, of discovery of documents relevant to the trial of the action. At this stage it is important that I say something about the general practice of the Federal Court which, in this regard, is markedly different, as I understand it, from the practice which has occurred in the past in the Supreme Court of Tasmania, although there may well be changes occurring 1n that jurisdiction as well. In the Federal Court, for practical purposes, any claim is made by way of application and that is provided for in the Federal Court Rules and the application directs the respondent to attend at a directions hearing. In this regard there is a marked difference between the Federal Court and Supreme Courts, not only in Tasmania but also in other States. Generally speaking, in Supreme Courts the action is commenced by way of writ which directs that the defendant, if desirous of defending the claim, enter an appearance. If no appearance is entered there is a procedure whereby judgment can be obtained in appropriate cases but if an appearance is entered, the rules of the Supreme Courts contain procedures whereby the future conduct of the action depends very much upon the activities of the legal practitioners of the parties, namely, the procedures by way of pleadings and matters of that kind. The Supreme Court is available to deal with any matter that the parties want to bring before it but the Court itself normally does not take an active part in those proceedings. The Federal Court, however, is philosophically different in nature. At the directions hearing the Court is empowered by Order 10 to give directions as to the future conduct of those proceedings. On one view, as a result of directions given, the Federal Court then takes an active part in controlling the future conduct of those proceedings. In this regard, it is very different from the State Supreme Courts. I do not propose to go into detail as to what those steps are, but, it is a new development in court management in Australia and the Federal Court, even after some ten years, is still developing this concept. One is aware that in Tasmania the amount of work in the Federal Court is not so great as in other States and possibly in the absence of a Judge of the Federal Court actually residing in Tasmania or in Hobart, there has not been the guidance by the Court that has developed in other States as to the procedures to be observed and the method of control by the Court itself on the conduct of actions. The whole purpose of this taking of control by the Court is an aspect of what these days is commonly called case flow management, a development which all courts are very conscious of at the present time. But at the same time, in order to be successful in its new ventures, the Federal Court depends very much _Y4pon the co-operation of the legal profession. Without that co-operation the Court can give directions, they can be ignored and if that happens what follows? The Court is required to do justice according to law between the parties. It must act impartially between parties and must ensure that their claims are properly presented and determined. This is not a case where the sins of the legal profession should be visited upon their clients. The Court has a greater duty to the litigants. In this regard, the Court was concerned when it heard, a short time ago, that the parties to these proceedings each sought an adjournment of the hearing of these two actions. The Court had been assured that the Matter would be ready for trial by 2 February 1988 and as recently as until a few days ago it appeared that the solicitors for both parties took the view that the actions were not ready for trial. As a result of directions given by me to the Acting District Registrar, the letter of 22 January 1988 was sent to the parties. The purpose of that was to enable the Court to look into the matter fully to determine whether the adjournment should be granted or not and it is noted that there are affidavits filed in support of a motion that an adjournment be granted. The affidavits were from the solicitors for Cafike and Powell respectively and each set out in some detail factual material to support the motion for the adjournment of the hearing. As part of its control of the proceedings, the Court thought it desirable that the litigants should be present in Court to hear what I propose to say in relation to this matter. Hence the direction that they be present today. One is always conscious of the fact, although I am not suggesting that it occurred in this case, that it is very easy for practitioners to blame the Court for delays in the hearing of an action when those delays are not caused by the Court itself but by the legal practitioners. At the same time, it must be realised that some cases can be very complex and very difficult and it is unfair on litigants if they are forced to proceed with a hearing when their legal representatives are not 1n a position to properly represent them at that hearing. Such a course gives rise to a feeling of injustice by the litigant, a feeling of unfairness and a feeling of the fact that the Court is acting unjustly. It is in this regard, as I said before, that the Court relies very much on the goodwill, the co-operation and the competence of legal practitioners in ensuring the proper conduct of the proceedings. Having said that, I come to the facts of this case. On the material before the Court there is a very strong reason why an adjournment should be granted. It appears that there has not been a proper compliance with directions previously given in this matter, both in relation to discovery and inspection and also particulars, and if the Matters were to proceed today it may well be that one or other or, may be both of the parties would be at a disadvantage. The matter however has been complicated by the fact that there has been a change of solicitors acting for Cafike in both these matters. The change occurred on 29 January 1988 and notice was given to the Court on 3 February 1988 and about the same time, I do not need to decide whether it was yesterday or today, notice was given to the solicitors for Powell. The legal advisers for Cafike now say that they are ready to proceed with the hearing and are opposing any adjournment. Counsel also say that having regard to the letter of 22 January 1988 written by the Acting District Registrar indicating that the Court directed that the parties be ready to proceed with a hearing of the actions in the event that adjournments were not granted, the fact that Powell now is not ready to proceed should not be a relevant factor to consider when determining whether to grant the adjournment ar not. There is some force in that submission but, at the same time, it is important to act justly between the parties and having regard to the earlier conduct of the then solicitors for Cafike, I cannot give the weight to the current position which otherwise I would have given, especially when certain particulars of one of the claims by Cafike have still not been given; I refer primarily to paragraph 5 of the amended statement of claim by Cafike, even though those particulars may well depend upon documents inspected as the result of discovery by Powell and some of those documents may not have been fully discovered. I am conscious also of the fact that the delay in hearing claims of itself can give rise to injustice and one can assume, in a case like this, that each party, and, in particular, Cafike, in view of the fact that it says that it is now ready to proceed, is suffering some injustice by delay. But at the same time I have formed the opinion that it would be unjust to force Powell to proceed with the hearing in circumstances where it has not been given particulars of all the claims made, where one aspect of the Claim, as submitted from the bar table on hehalf of Cafike, that an amount of somewhere between $40,000 and $50,000 is cwing as a result of non-payment of moneys owing pursuant toa the fruit juices that had been supplied by Cafike to Powell in the early parts of 1987, remains unpaid although 1t appears there is no specific claim for those amounts. Possibly it may come under a claim for an account or may be a claim for damages, but from what I have seen from the pleadings and from submissions made this morning, it seems that the real issues between the parties have not yet been sufficiently identified to enable Powell to present its case adequately and that the only fair thing to do as between the parties is to give further directions as to the interlocutory steps to be taken for trial. This gives rise, then, toa further aspect of the Practice of this Court. Normally at a directions hearing the date of a further directions hearing 1s fixed. In most States, except in urgent cases, a date is not fixed for the hearing of the action until a directions hearing is held at which the parties can assure the Court that the matter is ready for trial. In those circumstances, the Court can fix a date for hearing in the firm helief that the matter will proceed for hearing at the date fixed. In the present case that was not done. The matter certainly was not ready for trial on 27 October 1987 but in order to try to expedite the hearing of the matter, directions were given for a date to he fixed even though all interlocutory matters had not then been fully complied with. What has happened illustrates the undesirability of adopting that course, an experience which has been had in other States, hence the current practice. One aspect of the control by the Court and these directions hearings is that it often forces litigants and their legal advisers to face up to issues at a time before the actual hearing commences. By doing this it has been found in other States that any possible compromise to resolve the disputes between the litigants often occurs earlier than would otherwise happen. This is something which the litigants and their legal advisers should keep in mind, although the Court itself plays no part in the conciliation aspect of the matter. The Court does not want to know of any steps in such a course, it merely draws that to the attention of the parties. In all the circumstances of the case I propose to grant the adjournment sought by Powell. In these circumstances, I desire to hear counsel on what directions should be given to ensure that the matter will be ready for trial at the next directions hearing. I certify that this and the eight (8) preceding pages are a true copy of ths | Reasons for Judgment herein of the Honourable Mr. Justice R M. Northrop