Lanton Productions Pty Ltd v Edward Rushton Pty Ltd [1999] FCA 328

FEDERAL COURT OF AUSTRALIA

Lanton Productions Pty Ltd v Edward Rushton Pty Ltd [1999] FCA 328 LANTON PRODUCTIONS PTY LTD v EDWARD RUSHTON PTY LTD AND ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD AND GRAEME CHARLES PITTS AND MOORGATE FINANCE PTY LTD AND FRANK EDGE QG 160 OF 1992 DOWSETT J 22 MARCH 1999 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 160 OF 1992

BETWEEN: LANTON PRODUCTIONS PTY LTD

Applicant

AND: EDWARD RUSHTON PTY LTD

First Respondent

ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD

Second Respondent

GRAEME CHARLES PITTS

Third Respondent

MOORGATE FINANCE PTY LTD

Fourth Respondent

FRANK EDGE

Fifth Respondent

JUDGE: DOWSETT DATE OF ORDER: 22 MARCH 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The applicant have leave to discontinue as against the fifth respondent with no order as to costs. 2. The first respondent have leave to discontinue as against the fifth respondent with no order as to costs. 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 QG 160 OF 1992

BETWEEN: LANTON PRODUCTIONS PTY LTD

Applicant

AND: EDWARD RUSHTON PTY LTD

First Respondent

ELECTRONIC LEARNING SYSTEMS INTERNATIONAL PTY LTD

Second Respondent

GRAEME CHARLES PITTS

Third Respondent

MOORGATE FINANCE PTY LTD

Fourth Respondent

FRANK EDGE

Fifth Respondent

JUDGE: DOWSETT

DATE: 22 MARCH 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The proceedings before me are as between the applicant and the first, third and fifth respondents and as between the first, third and fifth respondents. The only parties who have appeared at the trial are the applicant and the first and third respondents. We have been proceeding in the absence of the fifth respondent. All proceedings as between the applicant and the first and third respondents have now been resolved by agreement so that the only outstanding proceedings are as between the applicant and the fifth respondent and as between the first and fifth respondents. 2 The evidence indicates that at the very least, the fifth respondent took a secret commission and would be liable to account for same to the applicant. The applicant has no cause of action pleaded in this regard, and so if it wished to prosecute that claim, it would be necessary to amend the pleadings. This would inevitably entail notice to the fifth respondent. I am informed that the fifth respondent is probably out of the country. The applicant does not particularly wish to prosecute the proceedings as against the fifth respondent but does not wish to expose itself to the possibility of an order for costs in his favour as a result of its discontinuing. Although he is not presently represented, he has previously been represented by solicitors. 3 No good purpose would be served by maintaining these proceedings on foot. It seems absurd to compel the applicant to proceed to obtain a judgment against the fifth respondent merely to avoid the possibility of an order for costs. As I have said, on the evidence which I have heard, there is little doubt that the applicant is entitled to some relief as against the fifth respondent. In the circumstances, I consider it appropriate to bring the matter to a conclusion by giving the applicant leave to discontinue with no order as to costs as between it and the fifth respondent. Such an order is clearly one which would have been within the contemplation of the parties as a possible outcome once the matter was set down for trial. For that reason, the fifth respondent has no ground for complaint that the order should be made at this stage without further notice to him. For similar reasons, I will also give the first respondent leave to discontinue as against the fifth respondent with no order as to costs.