Colbron W v St Bees Island P/l & Ors [1994] FCA 1061

SUDGMENT No. LOS ull ead on

NOT FOR DISTRIBUTION ensnnacenean

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No G326 of 1994 GENERAL DIVISION )

WARWICK COLBRON Applicant

ST BEES ISLAND PTY LTD ACN 010 400 572 First Respondent

LIONEL NEIL BERCK Second Respondent

RECEIVED 27 JAN 1995

FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY

MARGARET OTTLIE BERCK Third Respondent

JOHN FRANCIS URCH Fourth Respondent

WHITSUNDAY ISLAND DEVELOPMENTS PTY LIMITED (ACN 059 374 882) Fifth Respondent

CORAM: LINDGREN J PLACE: SYDNEY DATE: 6 DECEMBER 1994

REASONS FOR JUDGMENT

There is before the Court a motion on a notice of motion which was filed in Court yesterday, Monday, by the applicant in which the applicant seeks an order that there should be judgment for the applicant under the Federal Court Rules, Order 10, r 7, based on non-compliance by the first to fourth respondents ("the Respondents") with orders made by the Court on 5 September 1994. Order 10, r 7, provides that where a party fails to comply with

an order of the Court directing that party to take a step in the

proceeding, any other party may move the Court on notice relevantly for judgment or an order against (here) the

Respondents.

The notice of motion was, as I have said, filed in Court yesterday, Monday, when the proceedings were listed before me for directions but the Respondents did not appear. I ordered that it be made returnable instanter, stood the hearing over to 2.15 pm today, and gave directions for the purpose of ensuring that notice of it was brought to the attention of the Respondents.

They have been represented on the hearing today.

It is necessary to go back to the directions made on 5 September 1994. The background to the matter may be found in a judgment which I gave on that date and is not repeated here. I should say that in giving the following account of the responses to the various directions which were made on 5 September, I am taking information given to me from the bar table. No doubt in many cases a study of the Court record would bear out what I was told. However, there is substance in what Mr Burchett of counsel for the Respondents says, when he submits that where such a serious application as this is made it should be supported by an affidavit. On the other hand, there is no dispute in relation