t JUDGMENT No, 17. / 88... IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G197 of 1987 GENERAL DIVISION ) BETWEEN: THOMAS MICHAEL JONES Applicant AND: DEICKE ENTERPRISES PTY. LTD. First Respondent Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 15 APRIL 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the orders made on 21 March 1988 be set aside; 2. the applicant pay the respondents' taxed costs relating to the appearance on 21 March 1988; 3. the costs of and incidental to the application filed on 29 March 1988 be the respondents' costs in the proceedings. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) UEENSLAND DISTRICT STRY ) QLD G197 of 1987 GENERAL DIVISION ) BETWEEN: THOMAS MICHAEL JONES Applicant AND: DEICKE ENTERPRISES PITY. LTD. First Respondent AND: EILEEN DEICKE Second Respondent PINCUS J. 15 APRIL 1988 REASONS FOR JUDGMENT The principal application was struck out on 21 March 1988 and the applicant now seeks to have that order set aside so that the matter may proceed in the ordinary course. The principal application 1s one concerning sale of land, the applicant asserting that some improvements which were represented to be on the land were in fact partly ona gazetted road. The contract was made on 12 November 1984 and the application was filed nearly three years later on 29 October 1987. Although the defendant pleads the three-year time limit in s.82(2) of the Trade Practices Act 1974, it seems clear that the proceeding was not, when instituted, statute barred. The first directions hearing took place on 18 December 1987, when I ordered that the defence be filed and served by 1 February 1988, that a reply be filed and served by 15 February 1988, that discovery and inspection take place by 7 March 1988; I set the matter down for further mention on Monday, 21 March 1988 at 9.30 a.m. The defence was filed and served on the due date, but there was no reply, nor any discovery, when the matter next came before me on 21 March. There was no appearance for the applicant, and at the request of a representative of the repondents, the principal application was struck, under 0.10 r.3(2). Senior counsel for the applicant, Mr Hanson Q.C., argued that in the circumstances the suit could be restored without injustice. He pointed out that, if the applicant were forced to begin again, a mew proceeding would have to be instituted more than three years after the time limit mentioned in s.82(2). He argued that on the evidence the applicant's defaults were due to errors on the part of the legal advisers, and not to any fault on the part of the applicant or lack of desire to pursue the litigation. The rules give the Court power to make such an order as was made, in the event of non-appearance at a directions hearing. Unfortunately, such non-appearance is not uncommon. It appears to me imprudent routinely and as a matter of course to set aside orders made striking proceedings out or discussing them for non-appearance at directions hearings. It is an important aspect of the procedure in this Court, as I understand it, that the Court (generally speaking) makes orders designed to keep the proceedings moving towards a hearing; that system cannot work well unless the directions hearings are taken seriously. It does not appear to me, on the evidence, that the applicant's solicitors were greatly concerned to ensure that there be an attendance at the second directions hearing, or that the order with respect to discovery be complied with. Further, in my opinion, some of the points made against the applicant by Mr Fryberg Q.C., senior counsel for the respondents, have substance: 1. There is a degree of inconsistency in the explanations given on the applicant's side. Mr Cusack, the solicitor who had the carriage of the matter, appears to say that he did not take the time limits set very seriously because he thought the matter would settle (para.59), but also says that the non-appearance at the further directions hearing was a mere oversight (para.57), and adds that he thought the directions hearing was to take place at some later date (para.52). 2. Mr Cusack blamed a notice requiring discovery served by the respondents for misleading him "somewhat as to the dates when the various steps in the action were to be taken". However, it is accurately pointed out that the notice to which he refers was given only after the time fixed for discovery had expired. It should be added that there is a dispute as to the content of contacts between the parties with a view to settlement of the matter. I am satisfied that some discussions to this end took place; they appear to have been very preliminary and have little to do with the question I have to consider. That is so because nothing was said on the part of the respondents to encourage the thought that any such preliminary approaches were to affect the progress of the suit; on the contrary, the respondents' solicitors appeared to me to indicate clearly enough, by asking for delivery of a reply and expressly seeking discovery, that they expected the suit to continue whether or not any discussions took Place. In my view, the idea that any mention or possibility of settlement excuses the parties for ignoring time limits which were (as here) agreed between them and ordered by the Court is a pernicious one. If, when discussions are proposed, 1t 1s desired that the progress of the matter be placed in suspense, the party desiring that to occur should seek to have the directions orders varied accordingly, and not simply ignore them. In the whole circumstances as revealed by the material, however, it appears to me right to set aside my earlier order. On 10 March 1988, the respondents' solicitors wrote to the applicant's solicitors enclosing a copy of a notice requiring discovery that was to be served. They also said, in effect, that they thought there should be another party to the action and that an application would be made for a stay. On 14 March, the solicitors for the respondents served on the town agents of the applicant''s solicitors a notice requiring discovery within 28 days. As I have pointed out above, the order which was made in December required discovery to take place by 7 March. The respondents' notice was given a week later and the applicant could have, consistently with the notice, given discovery in April, well past the date of the directions hearing. Further, so far as the material shows, the respondents have themselves made no attempt to comply with the order as_ to discovery. Although the applicant's solicitors have given no good reason for their failure to comply with the Court's orders, I agree with Mr Hanson's submission that there is no evidence of flagrant or contumacious non-compliance. I do not, of course, decide the matter on the basis that such non-compliance as I have just mentioned must exist in order that the respondents in these circumstances may successfully oppose an order restoring the suit; but in the circumstances of this case, it would, as 1t seems to me, be unreasonable that the result should ensue that' the applicant's claim should fail completely because of procedural errors on the part of solicitors. I shall therefore set aside both the orders made on 21 March 1988. As to costs, I propose to order that the applicant pay the respondents' taxed costs relating to the appearance on 21 March 1988 and that the costs of and incidental to the application filed on 29 March 1988 and disposed of by this order be the 1 certify that this and the AL preceding respondents' costs in the proceedings. Pages are a true copy of the reasons for judgment herein of His Honour Mr, Justice Pincus d g Mtg -ociate Datsd (5 Apvi! 199°