FEDERAL COURT OF AUSTRALIA Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 4) [2012] FCA 273 Citation: Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 4) [2012] FCA 273 Parties: TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER File number: NSD 120 of 2011 Judge: EMMETT J Date of judgment: 24 February 2012 Legislation: Federal Court Rules 2011 r 26.01 Date of hearing: 24 February 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Counsel for the plaintiff: The plaintiff did not appear Counsel for the defendants: CRC Newlinds SC, P Kulevski Solicitor for the defendants: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 120 of 2011 BETWEEN: TRANSPACIFIC PTY LTD ACN 073 644 612 Plaintiff AND: PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY First Defendant DAVID JOHN WINTERBOTTOM Second Defendant DAVID PAUL MERRYWEATHER Third Defendant JUDGE: EMMETT J DATE OF ORDER: 24 FEBRUARY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to rule 26.01 of the Federal Court Rules 2011, the proceeding be dismissed summarily. 2. The plaintiff pay the defendants' costs of the proceeding, including the costs of the interlocutory application of 10 February 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 120 of 2011 BETWEEN: TRANSPACIFIC PTY LTD ACN 073 644 612 Plaintiff AND: PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY First Defendant DAVID JOHN WINTERBOTTOM Second Defendant DAVID PAUL MERRYWEATHER Third Defendant JUDGE: EMMETT J DATE: 24 FEBRUARY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By interlocutory application filed on 10 February 2012, the defendants seek an order under rule 26.01(1)(a) of the Federal Court Rules 2011 that the proceeding be dismissed, on the basis that there are no reasonable prospects of the plaintiff's successfully prosecuting the proceeding. The proceeding has had a chequered course, and has been complicated by the fact that the plaintiff attempted to file a notice of discontinuance on 15 February 2012, purporting to be by consent. In fact, the defendants do not consent to discontinuance, and oppose leave being given to the plaintiff to file the notice of discontinuance. Such leave is required under the Rules. 2 This proceeding was fixed for hearing before Stone J in October 2011. That hearing was vacated on the application of the plaintiff and over the opposition of the defendants. The plaintiff had failed to comply with multiple deadlines for the filing of evidence. Nevertheless, less than a month before the date fixed for hearing, the plaintiff had represented to the Court that it wished to preserve its trial date. 3 On 17 October 2011, the plaintiff conceded, through its legal representatives, that it did not, on the evidence before the Court at that time, have a prima facie case, and that the proceeding was bound to fail unless further evidence was put on. Stone J acted on that submission to grant an adjournment, and provided a timetable for further evidence, on the basis that the matter be ready for hearing in late February 2012. The plaintiff then sought leave to appeal from the directions made by Stone J and filed interlocutory applications for an extension of the timetable. Leave to appeal was refused, and the time that would have been fixed by an extension has now expired. No further evidence has been filed. 4 Thus, it is clear, on the plaintiff's own admission, that, if the proceeding were to go to trial on the basis of the evidence that has been filed to date, it is bound to fail. There is presently no application on foot for any extension of the time within which the plaintiff should file any evidence. It is clear that any such application would be unlikely to be granted if it were made. 5 When the matter was called on for hearing this morning, there was no appearance for the plaintiff, notwithstanding that steps have been taken on behalf of the defendants to notify the plaintiff formally of the application for summary dismissal. Searches at the Australian Securities and Investments Commission indicate a principal place of business for the plaintiff at Level 7, 67 Castlereagh Street, Sydney, as well as a registered office at the premises of a firm of accountants in Newcastle. The principal place of business appears to have been abandoned, mail addressed to the plaintiff having been found outside the premises. The relevant material was sent by facsimile to the registered office. A telephone call to the office indicated that the facsimile had been received, although a comment was made that the plaintiff's business is dealt with by the Sydney office of the firm. The sole shareholder and director of the plaintiff company has a residential address in Woollahra. The material was also left at that address. In the circumstances, I am satisfied that the plaintiff has been formally notified of the application for summary judgment. 6 I am satisfied that there is no reasonable prospect that the plaintiff could successfully prosecute this proceeding without a grant of leave to rely on further evidence. In any event, as I have said, the plaintiff has foreshadowed a desire to discontinue the proceeding, thereby indicating a lack of interest in rectifying any deficiency in evidence. I do not consider that there should be any indulgence granted to the plaintiff through the giving of leave to file a notice of discontinuance. In all of the circumstances, I propose to order that the proceeding be dismissed summarily, and that the plaintiff pay the defendants' costs of the proceeding. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 22 March 2012