McIntyre v Southern Cross Equities Ltd [2011] FCA 455

FEDERAL COURT OF AUSTRALIA

McIntyre v Southern Cross Equities Ltd [2011] FCA 455 Citation: McIntyre v Southern Cross Equities Ltd [2011] FCA 455

Parties: JOHN GLEN MCINTYRE v SOUTHERN CROSS EQUITIES LTD

File number: VID 1015 of 2010

Judge: MANSFIELD J

Date of judgment: 5 May 2011

Date of hearing: 5 May 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 33

Counsel for the Applicant: P Bick QC and D Farrands

Solicitor for the Applicant: Slater & Gordon

Counsel for the Respondent: M Colbran QC and R Peters

Solicitor for the Respondent: Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1015 of 2010

BETWEEN: JOHN GLEN MCINTYRE

Applicant

AND: SOUTHERN CROSS EQUITIES LTD

Respondent

JUDGE: MANSFIELD J DATE OF ORDER: 5 MAY 2011 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

On the Respondent's Notice of Motion of 31 March 2011: 1. Leave be given to the Applicant to file and serve the a Further Amended Statement of Claim (being the proposed Further Amended Statement of Claim as part of Exhibit MT-3 to the affidavit of Michael Tandora affirmed on 31 March 2011) by 10 May 2011, subject to including the following amendments: 1.1 at the end of paragraph 3, include the words: "and alternatively, by reason of the matters alleged in paragraphs 5 and 6 hereof, subparagraphs (c) and (d) became an express, or alternatively, an implied term of the retainer"; 1.2 remove the word "particulars" in paragraph 6; 1.3 paragraph 17(ii) be deleted; 1.4 paragraph 22(i) be deleted; and such typographical alterations as the Applicant considers appropriate. In the proceedings generally: 2. By 4:00 pm on 20 May 2011, the Respondent file and serve an Amended Defence. 3. By 4:00 pm on 27 May 2011, the Applicant file and serve a reply (if any). 4. By 4:00 pm on 20 May 2011, the Applicant file and serve a list of discovered documents answering the categories set out in the first column of the table in Annexure A to the letter from Mallesons Stephen Jaques to Slater and Gordon and annexed to this Order. 5. By 4:00 pm on 20 May 2011, the Respondent file and serve a list of discoverable documents answering the categories of document identified in Annexure B to this Order. 6. Subject to paragraphs 9 and 10, evidence in chief at trial shall be way of witness statements. 7. The Applicant file and serve: 7.1 Lay witness statements by 13 May 2011; 7.2 Expert witness statements by 27 May 2011; 7.3 Supplementary lay witness statements in relation to matters raised in the amended defence by 27 May 2011. 8. The Respondent file and serve: 8.1 Lay witness statements by 24 June 2011; 8.2 Expert witness statements by 8 July 2011. 9. Evidence in chief concerning the allegations in paragraphs 5 and 6 of the Statement of Claim and paragraphs 10(e) and 11(b) of the Defence shall be given viva voce at the trial. 10. The witness statements shall include an outline of the evidence in chief the parties anticipate will be adduced viva voce in chief concerning the allegations in paragraphs 5 and 6 of the Statement of claim and paragraph 10(e) and 11(b) of the Defence, provided that no such outline of evidence may be admitted into evidence or may be the subject of cross-examination. 11. Once the Respondent file and serves witness statements, Counsel for the parties confer with a view to providing the Court with a joint note in relation to how any expert evidence is to be dealt with. 12. Pursuant to Order 72 of the Federal Court Rules, the proceeding be referred to mediation by a Registrar of the Court. The mediation shall be conducted after 13 June 2011 and no later than 24 June 2011. In the event that the matter does not settle at the conclusion of the initial mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The mediator is to report the result of the mediation / case management conference to the Court by 24 June 2011. 13. The proceeding be listed for trial commencing at 10:15 am on 29 August 2011 on an estimate of 10 days. 14. The Orders of 10 February 2011 be discharged other than Order 14, reserving the costs of that attendance. 15. The costs of the respondent's notice of motion of 31 March 2011 be the applicant's costs in the cause in any event. 16. Liberty to apply. 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.