IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT 1. The applicants' dismissed. JUDGMENT NO. senod oat DH. ee ee ee ee No. WAG 126 of 1989 SHAWKY MICHAEL and JOYCE MARY MICHAEL Applicants and MONITRONIX LIMITED First Respondent BERNARD WILLIAM RIDGEWAY DAVID CHRISTOPHER NICOLSON GRAHAM CHARLES SYLVESTER Second Respondents MINUTE OF ORDER CARR J. 13 DECEMBER 1994 PERTH motion filed on 15 November 1994 be 2. The applicants pay the second respondents' costs (if any) to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 15 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY 'ran s IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WAG 126 of 1989 BETWEEN: SHAWKY MICHAEL and JOYCE MARY MICHAEL Applicants and MONITRONIX LIMITED First Respondent BERNARD WILLIAM RIDGEWAY DAVID CHRISTOPHER NICOLSON GRAHAM CHARLES SYLVESTER Second Respondents JUDGE MAKING ORDER: CARR J. DATE OF ORDER: 13 DECEMBER 1994 WHERE MADE: PERTH 33 ( FOR ORDER This is the applicants' motion that a stay of proceedings oxdered by French J. on 23 November 1989 be lifted. In summary, in the proceedings filed in this Court the applicants seek damages and other relief in respect of employment contracts with the first respondent and for conduct of the first and second respondents which is said to have been misleading or deceptive or likely to mislead or deceive contrary to s.52 of the Trade Practices Act 1974 (Cth). There are other claims said to have arisen out of the dealings between the applicants and the first and second respondents. French J. made the above order because similar claims (other than the claims under the Trade Practices Act) had been made by the applicants in certain proceedings in the Supreme Court of Western Australia. In the course of the interlocutory proceedings before French J., the applicants conceded that the matters of which they seek to complain in the application filed in this Court arise substantially out of the same matters of fact as the proceedings in the Supreme Court. In those circumstances, his Honour held that the appropriate and convenient course would be for the trade practices claims to be raised in the Supreme Court proceedings. His Honour's ex tempore reasons for judgment conclude in the following terms: "I propose therefore to stay this application indefinitely. If circumstances should change in such a way as to justify the reactivation of these proceedings, then Dr Michael may come back and apply to this court but such an application will not be lightly entertained unless it is shown that efforts have been made to bring the matter within the jurisdiction of the Supreme Court and that for some combination of circumstances he cannot get a trial or be heard in that court on those issues. In so saying, I am assuming there 18 some cause of action and am not disposing summarily of that question. If there is a Trade Practices action available, its proper formulation can be considered at the time that a further pleading is filed." On 25 October 1994 Lee J. made the following orders: "Leave to 15 November 1994 to file application to remove stay subject to filing affidavit in support ef application which: 1. provides details of all actions pending at the Supreme Court as at 23 November 1989 and a chronology and details of all steps taken in Supreme Court proceedings since 23 November 1989; 2. explains what causes of action have been sought to be litigated in Supreme Court proceedings; 3. states what proceedings if any stand in the Supreme Court at this date and states what orders were made to terminate any other proceedings in that Court; exhibits a proposed amended statement of claim with amendments underlined and sets out the argument why the amendments should be permitted. sets out the grounds upon which it is said the order made by French J. on 23 November 1989 should be varied. the application and the affidavit, if filed, must be accompanied by submissions in writing in support of application. respondents to file any affidavits in reply which may refer to affidavits previously filed by 22 November 1989 and at the same time file written submissions in response to applicants' submissions. application, if filed, to be referred to a Judge to be decided on the papers. costs reserved." On 15 November 1994 the applicants filed this motion to remove the stay. On the same date the second-named applicant Mary Michael) filed an affidavit purportedly in with paragraphs numbered 1 to 5 above. That affida to various proceedings Supreme Court (Mrs Joyce compliance vit refers brought by the applicants in the of Western Australia against the first respondent and (amongst others) the second respondents. The first such action so referred to was Action No. 1551 of 1988 which Mrs Michael describes concerning the applicants' employment contracts and the frade in her affidavit as Practices Act 1974, conspiracy, defamation and trespass. Mrs Michael says that in July 1991 Master Bredmeyer dismissed as she put it, "most of the action" and the remaining of claim is for trespass only. statement Instead of providing details of all steps taken in these Supreme Court proceedings since 23 November 1989 (as paragraph numbered 1 of the above order requires), Mrs Michael has annexed to her affidavit a photocopy of what appears to be the cover sheet for the Supreme Court's file which lists the documents filed in those proceedings. It is possible, by close examination of the list of documents filed, to glean something of what appears to have taken place in those proceedings. However, the exercise requires a substantial amount of guesswork. For example what was the order made by Franklyn J. on 30 May 1990? Was it an order granting leave to re-amend the statement of claim as sought in the Chamber Summons filed on 24 April 1990? Mrs Michael says that there have been no further steps taken in those proceedings since July 1991. Mrs Michael, in her affidavit, next refers to Supreme Court Consolidated Action No. 2326 of 1987. Consolidated with this action, so it appears, are Actions No. 1961 of 1988 and 1255 of 1991. Mrs Michael says that these proceedings are for breach of a contract concerning "the payment of a patent for Dr Michael". Mrs Michael states that Master Bredmeyer dismissed Action No. 2326 of 1987 in which the first respondent sued Dr and Mrs Michael and that they are now currently entering a summary judgment against the defendants who include the three second respondents in these proceedings. Once again Mrs Michael simply annexes to her affidavit what appears to be a photocopy of the Supreme Court file head- sheet listing documents filed in the Supreme Court. This has been done, presumably, in an effort to comply with paragraph numbered 1 of the above orders. Mrs Michael next refers, in her affidavit, to Supreme Court Action No. 2256 of 1991. In that action Mrs Michael and her husband, it seems, have sued the second respondents in this application for what Mrs Michael describes as wrongful dismissal, breach of employment contracts and an alleged detinue/conversion of $2.5 million options by Mr Ridgeway. Apparently the claims relating to wrongful dismissal and breach of employment contracts have been struck out, but the proceedings are still on foot. Once again, instead of detailing the steps taken in those proceedings, a photocopy of the list of documents filed at the Supreme Court is annexed to Mrs Michael's affidavit. Next Mrs Michael refers to Supreme Court Action No. 2296 of 1992 in which Dr and Mrs Michael are suing the second respondent for what she describes as "dismissing Dr Michael as a director and copyright infringement against the directors of Monitronix Limited". According to Mrs Michael's affidavit, the claim against Mr Nicolson has been struck out and an appeal is pending. Again there is annexed to the affidavit simply a list of the documents filed at the Supreme Court being what appears to be the Supreme Court file head-sheet formally recording the documents filed. Finally, Mrs Michael refers to a Supreme Court Action No. 1387 of 1990 for loss of shares which was apparently discontinued in 1991. Although the above order requires the relevant affidavit to exhibit a proposed amended statement of claim in these proceedings with the amendments underlined and to set out the argument why such amendment should be permitted, there is no such document exhibited to Mrs Michael's affidavit. She seeks to incorporate by reference in her affidavit a proposed amended statement of claim which was annexed to Dr Michael's affidavit of 1 July 1994. That document does not show underlined amendments. The affidavit does not set out the grounds upon which it is said that the order of French J. of 23 November 1989 should be varied. I have, however, read a written submission in support which was filed by Mrs Michael on 15 November 1994. In my view, the affidavit filed by Mrs Michael does not comply with the orders made by Lee J. on 25 November 1994. An affidavit which complied with that order would have properly detailed all the steps taken in each of the abovementioned Supreme Court proceedings. In my opinion, it is not satisfactory simply to exhibit lists of documents filed in the Supreme Court as referred to above. Furthermore, as indicated above, paragraphs numbered 4 and 5 of Lee J's orders have not, in my opinion, been complied with. Finally, on reading the written submissions there do not appear, in my opinion, to be sufficient grounds stated for the order made by French J. to be varied. In terms of the passage from French J's reasons set out above, I do not think that it has been demonstrated that appropriate efforts have been made to bring the matter within the jurisdiction of the Supreme Court and that for some combination of circumstances the applicants cannot get a trial or be heard in that Court on those issues. Dr and Mrs Michael chose to sue the respondents in the Supreme Court in the various proceedings referred to above and there is obviously a considerable overlap of the disputes and issues which exist between Dr and Mrs Michael and the respondents in those proceedings (or which could have been made part of those proceedings) and the present proceedings. For the above reasons the applicants' motion is dismissed with costs to be taxed. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of Justice Carr. Associate: i Date: 13 December 1994 The applicants and the second respondents appeared in person Date of Hearing: 24 October 1994 Date of Judgment: 13 December 1994