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 to the matters to which I am about to refer. The first relevant direction which was made on 5 September was that the Respondents request any particulars of the applicant's reply and of any defence by the applicant to the cross-claim on or before 19 September 1994. A request was made by the Respondents for particulars on 28 November 1994. Apparently the letter was of that date, but it was received on 1 December 1994. That was clearly long out of time. It was not incumbent on the Respondents, of course, to request any particulars. In any event the request has now been made, and although its lateness is a matter to be taken into account, I would not make an order under Order 10 r 7 based on the lateness of the request. Paragraph 5 of the short minutes of 5 September was to the effect that the applicant was required to file and serve any affidavits in chief by 26 September 1994. The applicant says that that order was complied with. It is submitted for the Respondents that it was not complied with for the reason that the applicant was seeking to "split his case". That submission must be understood in the light of the particular directions which were made on 5 September 1994. They envisaged that the applicant would file affidavits in chief followed by the Respondents' affidavits followed by the applicant's affidavits in reply. I have not explored fully the submission made on behalf of the Respondents as to the splitting of the applicant's case and do not find it necessary to do so in order to resolve the motion this afternoon. I am not persuaded that, if a study of the affidavit filed revealed that the applicant had put on his evidence in chief by the affidavit filed on 26 September 1994, it could be said that he had not complied with the direction. The sixth order made on 5 September 1994 was that the Respondents file and serve any affidavits in reply on which they proposed to rely on or before 17 October 1994. They have filed no affidavits at all pursuant to that order. That is not a non-compliance with the order because they may elect not to file any evidence. For that reason I would not make an order under Order 10, r 7 simply on the basis that they have not filed any affidavit evidence. The seventh order made on 5 September 1994 is rendered otiose. It was not incumbent upon the applicant to file and serve affidavits in reply having regard to the fact that the Respondents had filed no affidavits to be replied to. The eighth order was that each party serve verified lists of documents by 14 November 1994. It is contended by Mr Burchett that the list filed on behalf of the applicant is inadequate. No list has been filed by the Respondents. It is said in relation to the latter, that the delay from 14 November 1994 to date and continuing (it is said that the list will be filed in about one week's time) is due to the fact that the solicitor for the Respondents has been very busy getting their documents together. I am not convinced. The period from 5 September 1994 down to the present time is a very long time indeed for preparation of a list of documents and there has been nothing more precise put before the Court than the submission that the solicitor for the Respondents has been busy in assembling the documents. There was a direction in paragraph 9 of the short minutes that each party inspect the other party's documents on or before 28 November 1994. The applicant "submits" that the Respondents have not inspected the applicant's documents. Of course in the absence of any list from the Respondents there have been no documents of the Respondents for the applicant to inspect. The proceedings were listed for directions yesterday when there was no appearance on behalf of the Respondents. It is put for them today that the solicitor overlooked the matter. Looking at the motion before the Court it comes down to this: although there is no affidavit from the applicant putting before the Court any evidence to support the motion, there is an acknowledged non-compliance by the Respondents with order 8 made on 5 September 1994, that is the order that the Respondents file a verified list of documents by 14 November 1994. As Mr Motbey of counsel for the applicant submits, that non-compliance gives the Court jurisdiction under Order 10, r 7. But I have no intention on the basis of that non-compliance of making the order sought. It would be wrong, in my opinion, to exercise a discretion under Order 10, r 7 in the way sought by the applicant without more evidence than simply that non-compliance. There is at least some area of disputation between the parties as to what has been taking place between them and it seems to me to be altogether too peremptory on a notice of motion filed yesterday and made returnable yesterday with no affidavit in support to grant the particular remedy sought. Notwithstanding what I have just said, it appears from the orders made on 5 September 1994, from what appears on the Court file and from such ground as was common between the parties this afternoon, that there has been an egregious disregard by the Respondents of the orders made on 5 September 1994. It may be that there is a satisfactory explanation, but to date none has been put forward. In saying this, I appreciate that there may have been little time available since the matter was before the Court yesterday. By the same token it was known that the matter was before the Court for directions yesterday and a copy of the (then proposed) notice of motion was served apparently last Friday. As well, notice was given to the Respondents pursuant to a direction of mine yesterday that the matter would be listed for hearing this afternoon at 2.15 pm. The question is what to do now with the proceedings. What I am disposed to do is to fix the matter for hearing at an early date. It is said for the applicant that the applicant is content to succeed or fail on nothing more than the affidavit evidence which it has already filed. I think that the appropriate course is not to fix the matter for hearing at this stage but to stand over the question of a hearing date and the question of costs of the applicant's motion to a date in the very near future. I indicate that one order on the question of costs which I would contemplate making is that the solicitor for the Respondents pay the applicant's costs thrown away of yesterday's directions hearing and of the hearing of the motion today, notwithstanding the fact that I propose to dismiss the motion. The only orders which I will make at this stage are as follows: (1) I dismiss the motion insofar as it seeks order number (2); (2) I stand over the motion to Thursday 8 December 1994 at 9.30 am before me to deal with the question of costs and with a view to fixing a hearing date. I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Dated: 27 January 1995 " Heard: 6 December 1994 Place: Sydney Decision: 6 December 1994 Appearances: Mr S Motbey of counsel instructed by Colbron & Associates, appeared for the applicant. Mr S Burchett of counsel instructed by Brock Partners appeared for the first to fourth respondents.