FEDERAL COURT OF AUSTRALIA Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA [2007] FCA 2013 OLIVAYLLE PTY LTD v FLOTTWEG GMBH & CO KGAA SAD261 OF 2006 LOGAN J 10 DECEMBER 2007 BRISBANE (HEARD IN ADELAIDE) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY SAD261 OF 2006 BETWEEN: OLIVAYLLE PTY LTD Applicant AND: FLOTTWEG GMBH & CO KGAA Respondent JUDGE: LOGAN J DATE OF ORDER: 10 DECEMBER 2007 WHERE MADE: BRISBANE (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The application is dismissed. 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 SAD261 OF 2006 BETWEEN: OLIVAYLLE PTY LTD Applicant AND: FLOTTWEG GMBH & CO KGAA Respondent JUDGE: LOGAN J DATE: 10 DECEMBER 2007 PLACE: BRISBANE (HEARD IN ADELAIDE) REASONS FOR JUDGMENT 1 The application for the adjournment of the trial by the Applicant is refused having regard to the following:- 2 The background to the case is, in broad compass, that of a claim for damages arising either from breach of contract, or from an alleged breach of the Trade Practices Act (Cth) 1974. There is also an element of terms of that contract which are said to have been derived from the application of the United Nations Convention on Contracts for the International Sale of Goods as imported into this country and, therefore, as alleged, further imported, by amended pleading, into the terms of the contract between the parties. Part of the case in damages is said to sound by way of lost opportunity. The subject matter of the contract is industrial machinery supplied by the Respondent to the Applicant for the processing of olive oil at the Applicant's olive plantation. 3 The curial history of the case has followed the ordinary course of case management proceedings in this Court. There are some critical dates in relation to that case management which it is necessary to recite. (a) On 13 April Finn J, who was, until November, the docket Judge in respect of the case, made orders requiring the Applicant to file and serve any expert reports on which it intended to rely, on or before 29 June 2007. (b) There was, between then and when the next order of interest was made, an attempt at the resolution of the case by alternative dispute resolution means. (c) On 27 July, Finn J made extensive directions designed to bring this case to a stage where it was ready for trial, commencing on 3 December 2007. Indeed, that was a date that was fixed for trial at that stage. The directions made by his Honour included, as one might expect, directions for the filing of affidavits and also expert reports by each of the parties. I note, in particular, that on 27 July, his Honour ordered that the Applicant file and serve any lay affidavits upon which it intended to rely by 7 September 2007, and ordered also that it file and serve any expert reports on which it intended to rely by 31 August 2007. There were corresponding orders in respect of the Respondent's lay and expert evidence. (d) The parties had already earlier agreed in respect of categories of documents for discovery. Suffice it to say, as the case moved closer to trial, there was an apprehension on the part of the Respondent that there was an incomplete discovery in relation to particular categories of documents. There was also, on the part of the Applicant, an apprehension that its statement of claim might require revision. I dealt with matters such as that on 19 November 2007. (e) On 3 December 2007, the date that was fixed and had been fixed since 27 July for trial, there was then an application on the part of the Applicant for the trial to be adjourned for a short time; that as a consequence of the apprehension there was a further category of documents, yet again, which required discovery to the Respondent. (f) The case was then adjourned until 5 November, at which time I was informed by counsel for the Applicant that the Applicant would be in a position to commence the trial on 6 December. (g) The trial then, in terms of oral evidence, commenced with the reading of Mr de Moya's affidavit and then finally, after objections had been dealt with, with his oral evidence-in-chief supplementing the affidavit evidence from him on 7 December. (h) The stage was reached on 7 December where that evidence-in-chief had almost been completed in the sense that, whilst there was no further oral evidence apprehended from him at that stage, there was, out of an abundance of caution, a request made by counsel for the Applicant to have the indulgence of not closing the evidence-in-chief on Friday afternoon but, rather, the opportunity for reflection over the weekend. (i) That reflection brought rather more than just a request for such leave, if any, as might be granted, to lead further oral evidence, but rather, an application today (10 December) that the trial itself be adjourned. That application was supported not by any affidavit evidence, but rather by what was, with respect, a very candid statement from the bar table on behalf of the Applicant as to the desire to adduce further evidence in relation to the question of damages in respect of lost opportunity. Candid though the statement was, it was nonetheless lacking in detail as to the precise nature and extent of that evidence and, indeed, by when one might expect that evidence would be available. The candour did extend to the confession that there was at least the possibility of a desire to adduce further expert evidence on behalf of the Applicant. (j) In opposing the application, the Respondent pointed to the particular preparation that had occurred and to a readiness on the part of counsel for the Applicant forthwith to cross-examine Mr de Moya, as would in the ordinary course of events have occurred at some stage today (10 December). There was no particular reference to embarrassment in relation to the position of witnesses who were to give evidence by video link from overseas. However, of course, the Respondent had not had a great deal of time in respect of which to seek instructions with precision on that subject. 4 In terms of principle, there is no doubt at all that the Court has a discretion, which is a general discretion, to exercise in relation to whether to grant an adjournment. 5 Reference was made in the course of submissions to the decision given in the High Court, on appeal from a Full Court of this Court, in the case The State of Queensland and Anor v JL Holdings Pty Ltd (1996-1997) 189 CLR 146. That case particularly serves to remind one that case management is not an end in itself, but rather a means by which the ultimate end of securing justice between the parties can be achieved. JL Holdings came on against the background of a case which the defendants had been the subject of a good many interlocutory directions hearings in the course of which they had been permitted several amendments to a defence. The defendants then applied again to amend their defence. The result of that amendment request was a refusal on the part of the docket judge to grant leave to amend the defence on the basis that it was arguably likely to result in the vacation of a date which had been fixed for trial some six months ahead. 6 One can see at once that there is a distinction in terms of factual background between the position that prevailed in JL Holdings and that which prevails today, in the sense that a trial has already been opened and commenced. That sentiment perhaps lies behind a passage in the joint judgment of Dawson, Gaudron and McHugh JJ in the JL Holdings case in which their Honours refer to the earlier decision of the Court in Sali v SPC Ltd and Anor (1993) 67 ALJR 841. In particular, at 154 of J.L. Holdings in the joint judgment, having referred to the judgment of Toohey and Gaudron JJ in Sali v SPC, Dawson, Gaudron and McHugh JJ observe: It may be said at once that the passage that we have cited from – that in the passage we have cited from Sali v SPC Ltd, Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. 7 So far as the material which would be of assistance in this type of application is concerned, I note that the practice adopted before me was similar to that which evidently was adopted in the Supreme Court of Victoria in relation to an application for the adjournment of a hearing in EG and H Nominees Pty Ltd v General Mutual Insurance Co Ltd (In Liquidation) and Anor (1976) 50 ALJR 460 - similar in the sense that there were statements made from the bar table in that case as to the hope that, given time, the Respondent to a petition for the winding up of a company would obtain evidence from witnesses to establish an oral assignment of a debt or part of a debt due to a petitioning creditor, thus destroying the basis upon which the petition was founded. In that case the trial judge had observed that there was nothing before him which would furnish any encouragement to conclude that there was some solid matter which existed and which, if produced, could be regarded as possibly influencing the course of the hearing of the petition. 8 I find myself in a similar position in that there is no solid matter which might influence me. Neither is there an affidavit sworn to by those who instruct counsel for the Applicant which deposes, in a candid way, as to the state of preparation or whether there was an advice on evidence; and, if so, whether there have been difficulties either of communication, or otherwise, which have intruded on the preparation of the case for trial in accordance with the directions that were made. 9 In State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493 to 494, Gleeson CJ, in his then capacity as Chief Justice of New South Wales, reflected upon the impact of case management philosophies on the determination of adjournment applications. His Honour observed - and he is speaking of the Supreme Court of New South Wales in this regard particularly, but also, I apprehend, of the other Courts in that State - as follows. The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase in the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard in controlling their lists and cases that come before them, to the interests of the community, and of the litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs…The flow of cases through the courts of this State is now managed by the judiciary and not left to be determined by the parties and their lawyers. 10 This Court, of course, has for a decade at least, embraced a docket judge system and, from the very early days of its existence, embraced a case management system. There are, therefore, interests to be considered which extend beyond just the interests of the Applicant or even, for that matter, the interests of the Respondent. Those interests concern the allocation of what is, even in relation to the Commonwealth, scarce judicial resources to all Australians or those entitled to the claim of the Court's jurisdiction, rather than just the particular parties to a proceeding. 11 Thus the application to adjourn a trial to a date which would necessarily be a date of uncertain precision, given the uncertain precision of the nature of the Applicant's foreshadowed evidence, has an impact on parties and would be parties beyond those in an instant case. It seems to me that the sentiments voiced by the Chief Justice of New South Wales, as his Honour then was, whilst one must read them subject to the later decision in JL Holdings, nonetheless have a resonance. 12 It also seems to me, in circumstances where there have been successive affidavits of documents sworn to by, or on behalf of, the Applicant as to the completeness of its discovery; that any documentary foundation in respect of the further aspects of damages must not be in present existence for those affidavits are entitled to be honoured on their face as conclusive. In effect, then, I apprehend that there is to be something of a further investigation which might lead to a supplementation in some way of the existing affidavit and oral evidence. 13 Another case which I note concerned practice in relation to the granting of adjournments or their refusal, and which, again, must also be read with a cautionary eye in light of JL Holdings, is a decision of a Full Court of this Court which is Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd and Ors (1991) 32 FCR 379. That there is room for reasonable people reasonably to differ in relation to how a discretion might be exercised, is evident from the dissent voiced by Pincus J in that case. The majority, which comprised Gummow and French JJ, made reference to the public interest in the efficient application of judicial resources, and how that may, and did, in the circumstances of that case, support a refusal to permit an adjournment to enable defects in preparation for trial to be remedied. I note that the trial judge in that case, from whom the appeal was brought, was Lockhart J, a particularly distinguished member of this Court, well-experienced in the conduct of, and also, at the Bar, presentation of commercial litigation matters. 14 Drawing then those disparate threads together, the circumstances of this case seem to me to be such that there is a candid, but nonetheless general, foundation voiced from the bar table in respect of a case which is not just pre-trial, but trial commenced with uncertain impact in terms of where that might leave the Respondent in terms of its position meeting whatever further case might be brought, or sought to be brought, by the Applicant. 15 Weighing those considerations, and the wider public interest considerations that I have mentioned, and particularly given that this case has long been fixed for trial, it seems to me that the appropriate balance to be struck is to refuse the adjournment and it is for those reasons that I have done that. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 December 2007 Counsel for the Applicant: D Whittington QC with J Teague Solicitor for the Applicant: Wallmans Lawyers Counsel for the Respondent: M Hoffmann QC with S Doyle Solicitor for the Respondent: Baker & McKenzie Date of Hearing: 10 December 2007 Date of Judgment: 10 December 2007