FEDERAL COURT OF AUSTRALIA Day v Mercedes-Benz Australia Pacific Pty Ltd [2011] FCA 454 Citation: Day v Mercedes-Benz Australia Pacific Pty Ltd [2011] FCA 454 Parties: GRAEME DAY, FYSWICK PROPERTIES PTY LTD and CANBERRA STAR MOTORS PTY LTD (IN LIQ) v MERCEDES-BENZ AUSTRALIA PACIFIC PTY LTD File number: NSD 800 of 2008 Judge: ROBERTSON J Date of judgment: 6 May 2011 Date of hearing: 5 May 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the Applicants: Mr J E Lazarus Solicitor for the Applicants: C G Gillis & Co Counsel for the Respondent: Mr D Pritchard SC with Mr P Cutler Solicitor for the Respondent: Robinson Legal IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 800 of 2008 BETWEEN: GRAEME DAY First Applicant FYSWICK PROPERTIES PTY LTD Second Applicant CANBERRA STAR MOTORS PTY LTD (IN LIQ) Third Applicant AND: MERCEDES-BENZ AUSTRALIA PACIFIC PTY LTD Respondent JUDGE: ROBERTSON J DATE OF ORDER: 6 MAY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent's notice of motion filed on 29 April 2011 be stood over to 6 June 2011. 2. The orders of Justice Stone made on 21 April 2011 be varied to the extent necessary to allow the respondent to file its defence to the second further amended statement of claim by 6 May 2011 at 4:00 pm. AND THE COURT DIRECTS THAT: 1. The respondent make any application for leave to issue subpoenas directed to matters arising from Mr Brede's affidavit returnable before Justice Robertson on or before 9 May 2011 at 2:15 pm. 2. Any submissions in relation to the costs of the respondent's motion, limited to 2 pages, be filed and served by the respondent on or before 10 May 2011 and by the applicants on or before 12 May 2011. 3. The matter be listed for further directions on 30 May 2011 at 9:30 am. 4. The respondent serve on the applicants the additional material that the respondent proposes to add to the tender bundle in response to Mr Brede's affidavit by 24 May 2011. 5. The respondent file and serve any additional affidavits in response to Mr Brede's affidavit by 24 May 2011. 6. Liberty to apply on 24 hours notice. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 800 of 2008 BETWEEN: GRAEME DAY First Applicant FYSWICK PROPERTIES PTY LTD Second Applicant CANBERRA STAR MOTORS PTY LTD (IN LIQ) Third Applicant AND: MERCEDES-BENZ AUSTRALIA PACIFIC PTY LTD Respondent JUDGE: ROBERTSON J DATE: 6 MAY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By notice of motion filed on 29 April 2011 the respondent seeks an order that the applicants not be permitted to read (and rely on) the affidavit of Campbell Dawson Brede sworn 19 April 2011 and filed on 20 April 2011. 2 The final hearing of the matter is to commence on 6 June 2011 and is to last for some three weeks on present estimates. 3 There is no doubt that the affidavit of Mr Brede should have been filed and served many months ago, at least insofar as it deals with the events of 2006. There is also no doubt that the respondent will have to spend time and resources in responding to the affidavit if it is permitted to be read and relied on. 4 Four affidavits were relied on in relation to the motion, those affidavits being two sworn by Mr C Gillis, the solicitor for the applicants, on 18 April 2011 and 3 May 2011 and two sworn by Mr A Robinson, solicitor for the respondent, on 29 April 2011 and 1 May 2011. 5 The submissions made by Mr D Pritchard SC who, with Mr P Cutler, appeared for the respondent had as their main focus paragraphs 5-18 of Mr Brede's affidavit and identified three general areas of factual investigation. The first was whether Mr Brede had a chance of being accepted by Mercedes- Benz as its dealer in Canberra. The second was the financial position of Mr Brede, more particularly whether he could have afforded to pay the $1.2 million to which he refers in his affidavit. The third point of investigation, which Mr Pritchard accepted overlapped with the investigations the respondent had already done in relation to Mr Stark, was the state of Mr Day's business by mid 2006. Mr Pritchard submitted that these areas of investigation constituted a distraction from the respondent's preparation of the case for hearing. 6 Mr Lazarus, who appeared for the applicants, accepted that the evidence of Mr Brede was late; that it could have been obtained in 2010 and that the sum total of the explanation for the lateness of Mr Brede's affidavit was that it was overlooked by the legal practitioners for the applicants. 7 I am not presently persuaded that the difficulties to which the respondent refers are of sufficient magnitude that it will not be possible or practicable for the respondent to deal with the material in the affidavit of Mr Brede in the time remaining until the final hearing commences on 6 June 2011. Thus, I am not presently persuaded that I should now order that the applicants not be permitted to read and rely on Mr Brede's affidavit. The areas of further factual investigation identified by the respondent seem to me to be achievable within that time. 8 I take into account that the discussions between Mr Brede and Mr Day in 2006 were already the subject of paragraphs 154 and following of Mr Day's affidavit filed on 20 July 2010. 9 Whether or not those paragraphs are in admissible form or hearsay is not the present question in light of the orders made by Stone J on 21 April 2011 for the notification and, where possible, resolution of objections to affidavits by 29 April 2011. 10 Part of the matters referred to in Mr Robinson's affidavit is directed to the strength of Mr Brede's evidence on its face. That is not a matter which goes to the present question. 11 The difficulties to which Mr Robinson refers stems from the respondent's legitimate desire to test the material the subject of Mr Brede's affidavit. In order to do so the respondent says that it will require the issue of subpoenas to "Mr Brede, his business, his accountants and also the accountants for Canberra Star Motors". 12 I do not regard this as presently standing in the way of Mr Brede's affidavit ultimately being relied on and read by the applicants. It may be that some or all of the difficulties which Mr Robinson apprehends do materialise and, if evidence of those difficulties is before me at the final hearing, I may ultimately exclude Mr Brede's affidavit. I will need to be persuaded then that the respondent, acting with diligence, did not have time in the period between 20 April 2011 and the date on which Mr Brede's affidavit is proposed to be read on or after 6 June 2011 to effectuate the necessary enquiries and that this creates a substantial prejudice to the respondent. I do and will take into account the extended break over Easter. I also take into account Mr Robinson's period of absence from Australia. 13 I accept that there will be some time which will be taken up with these areas of investigation but I am not presently convinced that the burden will be so onerous as to justify the exclusion of Mr Brede's affidavit on the material presently available. 14 For these reasons I do not dismiss the motion but stand it over. 15 It is, of course, a matter strongly to be disapproved that Mr Brede's affidavit has been sworn and filed so late. 16 The order that I make is that the respondent's motion stand over to 6 June 2011 before me. 17 I was asked by the parties not to deal finally with the costs of the motion and I therefore do not do so but indicate that in my present view the applicants should pay the respondent's costs of the hearing on 5 May 2011 since it was the applicants' failure to provide the affidavit earlier which has caused the present issue. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 6 May 2011