Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Olivaylle Pty Limited v Flottweg GMBH & Co KGAA (No 3) [2008] FCA 572
PRACTICE & PROCEDURE – timetable for filing evidence - application to file additional evidence – whether court should exercise discretion to permit reception of evidence – whether reception of evidence would cause unfair prejudice to other party – where other party has closed case
Federal Court Rules, O 33 r 1 Trade Practices Act 1974 (Cth)
Maguire v Leather [2007] QSC 164 cited Bassett v Host (1982) 1 NSWLR 206 considered Host v Bassett (1983) 57 ALJR 681 cited Betts v Whittingslowe (1944) SASR 163 considered Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424 considered State of Queensland v JL Holdings (1996/1997) 189 CLR 146 applied Cropper v Smith (1884) 26 Ch D 700 cited Sali v SPC Limited (1993) 67 ALJR 841 cited Clough and Rogers v Frog (1974) 48 ALJR 481 cited Black and Decker Australasia Pty Limited v GMCA Pty Limited [2007] FCA 1623 considered Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 applied OLIVAYLLE PTY LIMITED v FLOTTWEG GMBH & CO KGAA
SAD 261 of 2006
LOGAN J
4 APRIL 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SAD 261 of 2006
BETWEEN: OLIVAYLLE PTY LIMITED
Applicant
AND: FLOTTWEG GMBH & CO KGAA
Respondent
JUDGE: LOGAN J
DATE OF ORDER: 4 APRIL 2008
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT:
1. The application to read in the proceeding the affidavit of Martin Lorenz is allowed, save for all of paragraph 40 which follows the first sentence; and, subject to its identity with evidence already led, save for the plan identified by Mr Lorenz in paragraph 30 of his affidavit. 2. The Respondent is to pay the Applicant's costs of, and incidental to, this application to be taxed on an indemnity basis. 3. The Respondent is to pay the Applicant's costs in respect of that part of the trial which involves the hearing of Mr Lorenz's evidence, to be taxed on an indemnity basis. 4. Any other questions of costs arising from the granting of leave to file and read the identified portions of Mr Lorenz's affidavit be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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