Robinson, David Charles v Aware Ind Ltd & Ors [1998] FCA 1256

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – application to dismiss proceedings for non-compliance with orders – self-executing orders – costs thrown away – indemnity basis. Federal Court Rules O 10 r 7, O 62

Re Nguyen; ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320 Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 Fisher v Rural Adjustment and Finance Corporation of Western Australia (1995) 57 FCR 1 Sali v SPC Limited (1993) 67 ALJR 841 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Fairplay Newspaper and Printing Works Pty Ltd v Currico Nominees Pty Ltd (unreported, Federal Court, Carr J, 22 May 1998) Flemington Properties Pty Ltd v Raine and Horne Commercial Pty Ltd (unreported, Federal Court, Lehane J, 11 February 1998) Bates v Omareef Pty Ltd (unreported, Federal Court, Emmett J, 28 October 1997) Re Wilcox; ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151

DAVID CHARLES ROBINSON v AWARE INDUSTRIES LIMITED & ORS VG 221 OF 1996 WEINBERG J MELBOURNE 1 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 221 of 1996

BETWEEN: DAVID CHARLES ROBINSON

Applicant

AND: AWARE INDUSTRIES LIMITED

First Respondent

CHRISTOPHER AVERY

Second Respondent

PETER McCLOSKEY

Third Respondent

JAMES JOHNStON

Fourth Respondent

WILLIAM STIRLING

Fifth Respondent

ALLAN BOUNaDER

Sixth Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 1 october 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The notice of motion filed on behalf of the respondents on 31 August 1998 be dismissed. 2. The dates fixed for the trial of this application be vacated and the application fixed for trial to commence on 28 April 1999. 3. The applicant pay the respondents' costs incurred by reason of the need to vacate the dates previously fixed for trial, such costs to be assessed on an indemnity basis and paid on or before 22 October 1998. 4. The applicant pay the respondents' costs of the notice of motion filed on behalf of the respondents on 31 August 1998, such costs to be assessed on a party and party basis and paid on or before 22 October 1998. 5. The applicant give further discovery confined to documents not hitherto discovered on or before 4 November 1998. 6. The applicant make available for inspection all documents the subject of such further discovery (other than those to which there is objection to production) on or before 11 November 1998. 7. The applicant file and serve any report of any expert accountant upon which the applicant proposes to rely in the trial on or before 26 February 1999. 8. The applicant file and serve a list of proposed witnesses and an outline of the evidence which it is anticipated that each such witness will give on or before 26 March 1999. 9. The applicant in consultation with the respondents compile an indexed and paginated Court Book containing current pleadings and particulars, outlines of witness statements, and copies of documents that the parties will seek to tender at the trial, such Court Book to be filed no later than seven (7) days prior to the date now fixed for trial. 10. The parties file and exchange chronologies no later than seven (7) days prior to the date now fixed for trial. 11. The parties file and exchange outlines of argument setting out contentions of fact and law no later than seven (7) days prior to the date now fixed for trial. 12. In the event that the applicant fails to comply with any of orders 2 to 7 inclusive, the application stand dismissed, with costs. 13. There be liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.