FEDERAL COURT OF AUSTRALIA Griffin v Autobarn Pty Limited [2006] FCA 1602 ADAM GRIFFIN AND ANOR v AUTOBARN PTY LIMITED AND ANOR NSD 990 OF 2006 RARES J 27 OCTOBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 990 OF 2006 BETWEEN: ADAM GRIFFIN First Applicant PHILIP GRIFFIN Second Applicant AND: AUTOBARN PTY LIMITED First Respondent AUTOBARN LOGISTICS PTY LIMITED Second Respondent JUDGE: RARES J DATE OF ORDER: 27 OCTOBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceedings be dismissed pursuant to O 35A r 3(1)(a). 2. The applicants pay the respondents' costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 990 OF 2006 BETWEEN: ADAM GRIFFIN First Applicant PHILIP GRIFFIN Second Applicant AND: AUTOBARN PTY LIMITED First Respondent AUTOBARN LOGISTICS PTY LIMITED Second Respondent JUDGE: RARES J DATE: 27 OCTOBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application to dismiss the proceedings pursuant to O 35A r 3 and alternatively, under O 20 r 2(1)(c) on the bases that the applicants have failed to comply with the leave to file a further amended statement of claim on or before 29 September 2006, which I granted on 8 September 2006, and have not prosecuted the proceedings with due diligence. 2 The matter was last before me for directions on 20 October 2006. On that occasion, the applicants did not appear. I granted leave to the respondents to file and serve a motion seeking to have the proceedings brought to an end on that occasion, hence the motion before me this morning. 3 The applicants have today appeared via their solicitor, Mr Reinoso, who has informed me that the applicants do not have the financial resources further to prosecute the proceedings. In those circumstances it appears to me that the proceedings ought no longer to remain on foot in the court. They are not being prosecuted with due diligence. On the argument before me on 8 September 2006 the previous pleading emerged to be one which could not be sustained in that form, albeit that it may have been curable by proper amendment. The applicants do not appear to intend to rectify the pleadings and therefore they do not seek to bring before the court in proper form a justiciable issue to be determined. 4 For these reasons, I am of opinion that the proceedings should be dismissed pursuant to O 35A r 3(1)(a). 5 I order that: (1) the proceedings be dismissed pursuant to O 35A r 3(1)(a); (2) the applicants pay the respondents' costs of the proceedings. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 22 November 2006 Solicitor for the Applicants: Woods & Day Solicitor for the Respondents: Morgan Lewis Attorneys Date of Hearing: 27 October 2006 Date of Judgment: 27 October 2006