The Builders Warehouse Group Ltd T/as Campbells Hardware and Timber v Multinail Australia Pty Ltd & Ors [1995] FCA 164

CATCHWORDS PRACTICE AND PROCEDURE - admissibility of statement - witness deceased - utility in making direction before hearing Evidence Act 1905 Evidence Act 1995 ss 2(2) & (3), 63 Federal Court Rules O 10 r 1(2) The Builders Warehouse Group Limited T/as Campbells Hardware and Timber v Multinail Australia Pty Limited & Ors No QG66 of 1994 Kiefel J Brisbane 24 March 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG66 of 1994 BETWEEN: THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER Applicant AND: MULTINAIL AUSTRALIA PTY LIMITED Respondent AND: MULTINAIL AUSTRALIA PTY LIMITED Cross-Claimant AND: THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER Cross-Respondent JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 24 March 1995 WHERE MADE: Brisbane MINUTES OF ORDERS APPLICANT'S MOTION THE COURT GRANTS: 1. Leave to the applicant cross-respondent to file and serve a further amended statement of claim in accordance with exhibit "RAK6" to the affidavit of Ross Anthony Kinneally filed 7 March 1995 by 24 March 1995. THE COURT ORDERS THAT: 2. The applicant pay the respondent's costs occasioned by the amendment and the respondent's costs of and incidental to the application for directions, including the hearing on 22 March 1995. RESPONDENT'S MOTION TO STRIKE OUT: THE COURT ORDERS THAT: 1. Further hearing on the motion be adjourned. 2. The costs of the parties be reserved to the hearing of the application and cross-claims. 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 GENERAL DIVISION No. QG66 of 1994 BETWEEN: THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER Applicant AND: MULTINAIL AUSTRALIA PTY LIMITED Respondent AND: MULTINAIL AUSTRALIA PTY LIMITED Cross-Claimant AND: THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER Cross-Respondent CORAM: Kiefel J. DATE: 24 March 1995 PLACE: Brisbane REASONS FOR JUDGMENT On 4 November 1994 directions were made by me requiring the delivery of statements of the applicant's witnesses in affidavit form, to be delivered by 16 December 1994. That was not done. In January 1995 a proposed witness, Mr Robertson died, having signed a statement but not an affidavit. That statement was forwarded to the respondent on 2 February 1995. The following day the respondent filed a notice of motion seeking an order striking out the statement of claim.