FEDERAL COURT OF AUSTRALIA Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 5) [2009] FCA 366 ANDERSON FORMRITE PTY LTD (ACN 097 507 652) v BAULDERSTONE PTY LTD (ACN 002 625 130) NSD 1272 of 2007 GRAHAM J 9 APRIL 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1272 of 2007 BETWEEN: ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant AND: BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent JUDGE: GRAHAM J DATE OF ORDER: 9 APRIL 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's notice of motion filed in Court on 9 April 2009 be dismissed. 2. The applicant pay the respondent's cost of the Motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1272 of 2007 BETWEEN: ANDERSON FORMRITE PTY LTD (ACN 097 507 652) Applicant AND: BAULDERSTONE PTY LTD (ACN 002 625 130) Respondent JUDGE: GRAHAM J DATE: 9 APRIL 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These proceedings were commenced by the filing of an Application on 5 July 2007. A Statement of Claim was filed on the same day. An Amended Statement of Claim was filed on 23 August 2007 and a Defence to that Amended Statement of Claim was filed on 15 November 2007. There have been numerous directions hearings in the matter. On 7 April 2008 the matter was provisionally fixed for hearing commencing on Monday, 30 March 2009 with an estimate of three weeks but on the basis that the hearing would continue until concluded. On 4 November 2008 the provisional fixture of the matter for hearing was confirmed. 2 On 6 February 2009 pre-trial directions were made to ensure that the matter would be ready to proceed to a hearing on the appointed day, namely, 30 March 2009. A direction was made on that day, that evidence on contested issues of fact be given orally. There had been an earlier direction made on 7 April 2008 that statements of evidence and expert reports to be relied upon by the applicant be filed and served on or before 1 December 2008. A further direction was given that statements of evidence and expert reports to be relied upon by the respondent, be filed and served on or before 23 February 2009, and a direction that statements of evidence and expert reports in reply be filed and served on or before 9 March 2009. 3 On 6 February 2008 an Order was made that the applicant give security for payment of the respondent's costs in accordance with paragraphs 1, 2, 3, and 4 of certain short minutes, which were initialled by me and dated 6 February 2008. Paragraph 4 required the provision by way of security of a further unconditional bank guarantee in favour of the respondent in the amount of $125,000 on or before a date being 14 days prior to the date upon which the matter was first listed to commence hearing. Such security was not provided and, in accordance with the agreement of the parties contained in paragraph 6 of the same short minutes, an order was made on 20 March 2009 vacating the hearing date. 4 Paragraph 6 of the short minutes of 6 February 2008 contained a further provision as between the parties to the effect, that if the applicant's default in providing the last tranche of security for costs, continued for a period of seven days after the security was due to be provided, then the applicant would consent to a verdict being entered in favour of the respondent, with an order for costs in respect of the proceedings. As it transpires, on the very last day for the provision of security, a bank transfer of $125,000 was effected into the trust account of the solicitors for the respondent. My understanding is that that amount of $125,000 was then repaid to the applicant or its bankers and substituted by an unconditional bank guarantee in favour of the respondent albeit a day or so later. 5 An application was made by the respondent to have the proceedings disposed of favourably to the respondent, relying upon the applicant's indicated consent to a verdict being entered in favour of the respondent, with an order for costs in respect of the proceedings. 6 The purpose of the Orders made on 6 February 2008 was to ensure that security for costs were provided. Security was provided in the end, on the last day for which paragraph 6(2) of the parties' agreement provided. It did not seem to me appropriate, in the circumstances that the proceedings be dismissed. 7 It then became necessary to have the matter placed back in the list for directions to enable a new hearing date to be determined. That matter and other pre-trial matters were addressed on 27 March 2009. The transcript of proceedings on that day included an indication by senior counsel for the respondent that it was happy to start the matter on 20 April. The transcript at page 47 of 27 March 2009 includes the following: 'HIS HONOUR: … Is that a date – you don't have a lot of discretion, Mr Darams [Counsel for the applicant] – is 20 April convenient? MR DARAMS: Well, my client stands here. It has to take that date. I'm unavailable but it's really a matter for my client. HIS HONOUR: All right. Mr Maher may care to present the case but your client would be familiar with the fact that Mr Anderson can't conduct the case without an order of the court and I wouldn't be minded to make such an order as presently advised. MR DARAMS: No, we understand that, yes.' 8 Thereafter, the solicitor for the applicant became involved in the consideration of appropriate pre-trial directions. In the course of an exchange between myself and the solicitor for the applicant the following took place, as recorded in the transcript of 27 March 2009, page 48: 'HIS HONOUR: Are you now in a position to proceed with the conduct of this matter? Is your firm planning to remain in it? MR MAHER: Yes, your Honour. We will be remaining in it, yes, your Honour. HIS HONOUR: All right. Well, I think 20 April is the appropriate hearing date. Have you got some draft short minutes you wish to make available? MR HOGKINSON: No, your Honour. Sorry, I've just got the orders that your Honour is looking at.' 9 Thereafter, agreement was reached on appropriate pre-trial directions to enable the matter to be ready to commence on Monday, 20 April 2009. 10 On 27 March 2009 I ordered that the matter be fixed for hearing on 20 April 2009 with an estimate of 15 hearing days, but on the basis that if the hearing is not concluded by 8 May 2009 it would continue on 18 May 2009 and thereafter until concluded with the exception of 21 May 2009. Mr Hodgkinson, senior counsel for the respondent, informed the Court that he did not expect to be available on 7 and 8 May 2009 as he had a commitment to appear in a case in Queensland on those dates, and it was indicated that if that difficulty persisted the matter would be unlikely to proceed on those two dates, if it went that far. 11 Earlier today my chambers were contacted with a view to having the matter placed back in the list today for the purpose of enabling the applicant to make an urgent application. At 3 pm a Notice of Motion was filed in Court by the applicant together with a supporting affidavit of the solicitor for the applicant, Brendan Joseph Maher, sworn 9 April 2009. 12 The relief sought in the Notice of Motion is that it be returnable instanter and that the hearing date of 20 April 2009 be vacated. It was proposed that the costs thrown away by the adjournment be the respondent's costs in the cause. The basis on which the application is made is that there is not enough time available between now and 20 April to enable counsel for the applicant to prepare the applicant's case. 13 The second basis is that two witnesses are located in distant parts and it will not be possible, or may not be possible to secure their attendance in Court in Sydney to give their evidence. One such witness is said to be undertaking work in Alice Springs, in the Northern Territory, and the other is said to be travelling or working overseas, having visited Bangkok with an intention of travelling to Algeria, but because of the recent earthquake in Italy there is said to be some uncertainty as to that witness's movements. 14 My understanding is that videolink facilities are available in Alice Springs, such that the evidence of the witness in Alice Springs could be taken by videolink if necessary. Counsel for the respondent does not oppose the use of videolink evidence in respect of that particular witness. My anticipation would be that similar facilities would be available in major cities around the world to allow the witness who is overseas to give evidence by videolink if necessary. 15 The respondent opposes the application on the basis that, firstly, a delay from 30 March until 3 April was brought about by a delay on the part of the applicant to put the applicant's solicitors in funds, presumably to enable new counsel to be briefed in the matter. It was apparently established that Mr Mark Williams SC was available to appear in the matter and an indication as to his availability was given to the applicant on 30 March 2009. Thus it is said that approximately a week has been lost due to presumably, a failure by the applicant to put the applicant's solicitors in funds in relation to the retention of Mr Williams' services. 16 Secondly, it is said that to vacate the hearing date again would be to prejudice the interests of the respondent, which has been preparing the matter, in effect for a second time, so that it can start on 20 April. There's no evidence as to what, if any, extra cost has been incurred in the recent past, but it would go without saying, given the extensive effort that the respondent has put into the preparation and conduct of its case thus far, that evidence is not really necessary to support the proposition that considerable expense has been and is being incurred. It may reasonably be inferred. 17 In relation to the two witnesses in distant parts it is said that one of the witnesses has been subpoenaed and in the case of the other that there is no subpoena, but this does not seem to me to be a significant problem in the light of the fact that the respondent is willing to have the evidence of those witnesses given by videolink rather than by oral testimony from the witness box in Sydney. 18 Reference has been made by both parties to the State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146, especially at 154-5. 19 Each case needs to be considered on its own facts, as Gordon J rightly pointed out in Mijac Investments Pty Limited v Graham [2009] FCA 303 at [22] et seq. 20 The ultimate aim for a court is the attainment of justice. It is quite right to say that no principle of case management can be allowed to supplant that aim. This is not a case of case management. The issue presently before the Court is to address whether the applicant which started these proceedings as long ago as 5 July 2007 ought to be permitted to put off the hearing in circumstances where there are still 11 days to go before the date appointed for the hearing. Furthermore, the respondent has been assiduously engaged in preparing its case, both for a start on 30 March and now a start on 20 April. A further consideration to be taken into account is the very considerable cost to the community of the allocation of Court hearing time for a case such as this which has been fixed for hearing for three weeks, but on the basis that the hearing will continue until concluded. 21 Mr Williams has suggested that the application for an adjournment should be delayed to allow Mr Anderson, the principal of the applicant, to put on evidence explaining the difficulties that may have been experienced in providing the funding to which reference has been made between 27 or 30 March and 3 April 2009. It does not seem to me that that particular issue has any major bearing on how the Court should exercise its discretion in the circumstances of the case. 22 Every applicant that institutes proceedings in the Court does so in the knowledge that he, she or it will some day have to be prepared to 'face the music' in relation to the claims which she, he or it has made. It seems to me not unreasonable to expect the applicant in this case, in the circumstances which have been briefly summarised earlier in these reasons, to commence the hearing of its case on the appointed day, namely, 20 April 2009. 23 It would be the experience, I would imagine, of most judges of this Court, and certainly myself, that there are many instances where briefs are delivered late and one has to, in effect, go the second mile to ensure that the best can be done with a client's case on the first hearing date. Sometimes 11 days may be seen to be a luxury. 24 I appreciate that there are a considerable number of documents involved in this case. I also appreciate that there are no affidavits recording the evidence-in-chief of the various witnesses. However, there are statements of evidence to which reference has been made. 25 In the case of Mr Pask it is said that he has not actually put on a statement of evidence but rather, because he is an independent person, the evidence that he has given at a Royal Commission has been made available to indicate the nature of the evidence that he would be likely to give, in substitution for a formal statement. 26 In my opinion, the application to vacate the hearing date of Monday, 20 April 2009 should be refused. It should be borne in mind, that whilst that that is the first date for hearing, the hearing is fixed to continue over a lengthy period of time, and no doubt it will be possible for counsel for the applicant to develop a greater understanding of the case as it progresses. The ultimate aim is the attainment of justice, and in my opinion justice will only be done in the circumstances of this case if the hearing date is retained. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 20 April 2009 Counsel for the Applicant: M L Williams SC Solicitor for the Applicant: John de Mestre & Co Counsel for the Respondent: B D Hodgkinson SC and A B Gotting Solicitor for the Respondent: Clayton Utz Date of Hearing: 9 April 2009 Date of Judgment: 9 April 2009