JUDGMENT NO. snd Staal ection N 'AB: BR I IN NG 191 of 1993 \s] + a wrerwewerw BETWEEN: IN TY LIMITED First Applicant HNT ERVICES Pry Second Applicant THE BROKEN HILL PR ETARY MPANY LIMITED First Respondent INTRACTORS PTY LIMITED Second Respondent INEERING PTY LIMITE Third Respondent CORAM: Burchett J. PLACE: Sydney DATE : 12 October 1994 RECEIVED 200CT 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY In this matter, the remaining respondent companies seek a dismissal of the action for want of prosecution pursuant to Order 30, rule 5. There has been a long history of failure to take reasonable steps to enable the prosecution of the action to proceed. Repeatedly, the Court was informed by representatives of the applicant companies that the director principally responsible was overseas but would be returning very shortly, and 2. it was indicated that he was engaged in major commercial dealings on behalf of the companies. More than a month ago, the company ceased to be represented by a solicitor at all. Mr Hamod has attended Court today, to seek leave to oppose the application. He has filed an affidavit, and I have permitted him to address me and to rely on the affidavit. What he has suggested, as counsel for the respondent companies has pointed out, is quite contrary to what the representatives of the applicants had previously told the court on a number of occasions. The Court is now told that Mr Hamod has been seriously ill and incapacitated to conduct the affairs of the companies, at least in respect of these actions, for a period of well over a year. At the same time, Mr Hamod does agree that he has been able to engage in international negotiations and has been overseas, partly for that purpose, although he says it was also in accordance with medical or psychiatric advice to the effect that he required a change of scene. It appears, however, that there were other members of his family who were directors, and indeed Mr Hamod is no longer a director, being now company secretary only, in the case of each of the two companies. There is really no explanation before the Court as to why the other directors, during the period when Mr Hamod was a director, who are the sole directors now that he is no longer a director, have not caused the company to take appropriate steps. Mr Hamod tells me that the proceedings would be required to be amended by the addition of a further party which, it appears from 3. his affidavit, may well be the appropriate party to make the claims that have been made in the proceedings. In other words, it may be that the proceeding, in any event, is not at present properly constituted. The Court is never inclined to make an order of the kind sought by the respondent companies in any way precipitately, or without giving adequate opportunity to a party to put the case in order; and I have some sympathy for the difficulties which Mr Hamod has faced. However, it seems to me that I cannot overlook the extent to which there has been shown in this proceeding a complete lack of prosecution, over a lengthy period, of the claims that Mr Hamod wishes to pursue. When there is put into the scales, as well, the doubt whether those proceedings are even yet properly constituted, and the fact that, in any case, the one representative of the company who has come to court thinks they should be reconstituted, it seems to me that the only proper exercise of my discretion is to make an order under rule 5, leaving it to the companies to take what advice they may be able to obtain. The dismissal of the proceeding would not, of course, if the proposed third company does have a valid claim, operate by way of res judicata or issue estoppel as against that company. I know nothing of whether a time bar may have arisen, but if it has, that would be a factor that would have to be taken into account on any application for leave to amend in any case. In all the circumstances, I order, pursuant to rule 5 of Order 30 4. of the Rules, that the proceedings be dismissed on the ground that they have not been prosecuted with due diligence. I order that the applicants pay the costs of the first and third respondents. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Pridupp a OLA Date: 19 October 1994 Mr A. Hamod, their company secretary, appeared by leave on behalf of the First and Second Applicants. Counsel for the Respondents: Mr J.E. Marshall Solicitors for the Respondents: Messrs Blake Dawson Waldron Date of hearing: 12 October 1994