IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G1i60 of 1987 GENERAL DIVISION ) BETWEEN: SHAAB ELSEHALY and HASSANAT ELSEHALY Applicants AND: DESMOND ROY MITCHELL First Respondent AND: WAYNE MICHAEL McCRAE Second Respondent AND: KENNETH NOEL PENFOLD Third Respondent OAK BRAND PTY LTD Fourth Respondent TAYLOR HOLDINGS PTY LTD Fifth Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 8 JULY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the foreshadowed counter-claim mentioned on behalf of the first, third, fourth and fifth respondents, if it be made, not be made in these proceedings, but be the subject of a separate proceeding; 2. the parties exchange on 27 July 1988 copies of statements of witnesses they propose to call at trial; 3. the matter be set down for trial by the Registrar on a date to be fixed by him on his being satisfied it is ready; 4. any party may apply to the Registrar for the matter to be mentioned further; 5. the costs of today be 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 ) QUEENSLAND DISTRICT REGISTRY ) QLD G160 of 1987 GENERAL DIVISION ) BETWEEN: SHAAB ELSEHALY and HASSANAT ELSEHALY Applicants AND: DESMOND ROY MITCHELL First Respondent AND: WAYNE MICHAEL McCCRAE Second Respondent AND: KENNETH NOEL PENFOLD Third Respondent AND: OAK BRAND PTY LTD Fourth Respondent AND: TAYLOR HOLDINGS PTY LTD Fifth Respondent PINCUS J. 8 JULY 1988 EX TEMPORE REASONS FOR JUDGMENT In this matter a dispute has arisen with respect to the interlocutory steps to be taken. After some false starts, the proceedings got under way firmly in December last year, when a final version of the statement of claim was delivered. The defences in their final versions came in in February and March and discovery took place in April. On 14 April, it was decided that the trial should take place on a date to be fixed by the registrar and that the parties should exchange copies of statements of witnesses on 30 June. Mr Hensler and Mr Kilner, who appeared for the applicants and for the first, third, fourth and fifth respondents respectively, both concur in the proposition that on 14 April the parties for whom Mr Kilner appears, through him, foreshadowed that they would counter-claim for alleged wrongdoing by the applicants. The matter has proceeded further, Mr Kilner informs me, since then, in that further work has been done on the proposed counter-claim, and he tells me that the substance of the counter-claim was first foreshadowed in a letter written in March 1986, but that because it has been difficult to analyse the nature of it, 1t still has not been formulated. Mr Hensler says, in effect, that enough time has now elapsed and that he should not be held up further by this proposed counter-clain. The transactions which are the subject of the proceedings took place, according to the pleadings, some years ago and the lapse of time, experience suggests, will have already dimmed memories. The counter-claim as foreshadowed by Mr Kilner is related to the same transactions, but of course 1t is concerned with separate alleged wrongdoing from that which the applicants allege. The question which has troubled me is whether, as Mr Hensler says, his claim should go ahead without regard to the proposed counter-claim, or whether, as Mr Kilner suggests, the more convenient course is to hold these proceedings up until the counter-claim is formulated. In favour of Mr Hensler's argument, there is this to be said, that since the issues appear to be separate, there is no special reason why both disputes have to be heard together. The evidence no doubt would to some extent overlap, but the case as proposed to be mounted by the first, third, fourth and fifth respondents does not necessarily have to be run with the other. It seems to me that the better course is to let this present claim go ahead separately. If the respondents whom I have mentioned wish to make a claim, there is nothing to stop them filing an application and delivering a statement of claim; I think they should do that. A problem they may strike is the question of the three-year time limit and its operation, but that 1s not my present concern. I therefore will direct that the foreshadowed counter-claim mentioned by Mr Kilner, 1f£ 1t be made, not be made in these proceedings, but be the subject of a separate proceeding. The other orders I propose to make are that copies of statements of the witnesses proposed to be called be exchanged, in lieu of the date mentioned previously, that is 30 June 1988, on 27 July 1988. It does not seem to me to be necessary to provide for any further mention of the matter, which should now be set down when it is ready. However, if the parties wish to have it mentioned, they may do so on application to the registrar. In saying that, I particularly have in mind the matter mentioned by Mr Kilner, that he has some difficulty with witnesses and may not be able to provide copies of the statements of the witnesses he proposes to call. If that causes problems then it may be resolved by a further mention before the court, or alternatively the parties may be able to sort it out. The costs will be costs in the proceedings, and I will not make any further order. The other orders which I made previously still stand that the matter is to be set down for trial by the registrar, and I will not list another mention date. ' certify that this and the 3 preceding caves are a true copy of the reasons for judgment herein of His Honour Mr Justice Pincus 4 Avge Associate Dated 8 Jury '98E