Palmera Import Export Pty Ltd v Tobacco Dome Pty Ltd [2007] NSWSC 1016

New South Wales Supreme Court

CITATION : Palmera Import Export Pty Ltd v Tobacco Dome Pty Ltd [2007] NSWSC 1016 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 31 August 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 31 August 2007

DECISION : Unless plaintiff has by 26 September 2007 complied with orders, proceedings to be dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE – Application for dismissal of plaintiff's claim on grounds of protracted non-compliance with orders of Court for bringing matter to trial – Self-executing order made dismissing the proceedings if orders of Court not complied with by specified date

CASES CITED : Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379

Palmera Import Export Pty Ltd t/a King of Tobacco ACN 003 606 657 PARTIES : Tobacco Dome Pty Ltd ACN 093 963 421 Costa Sarris Cignall Pty Ltd

FILE NUMBER(S) : SC 50130/2005

COUNSEL : R.W. Tregenza (Plaintiff) S. Tatarka (Defendants)

SOLICITORS : Malouf Solicitors (Plaintiff) Belleli King & Associates (Defendants)

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HAMMERSCHLAG J

31 AUGUST 2007

50130/2005 PALMERA IMPORT EXPORT PTY LTD –V- TOBACCO DOME PTY LTD AND ORS EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a matter in which there has, for a long time, been default by the plaintiff of orders of the Court for the bringing of this matter to trial. 2 The position is currently that Mr Tregenza of counsel, who appears for the plaintiff, informs me and I accept, that the plaintiff requires until 18 September 2007 to file and serve both its expert reports and to complete discovery on a verified basis, which has not yet taken place. 3 Having regard to the age of this matter and to the defaults of the plaintiff which are set out and dealt with in the affidavit of David Arthur Rewell of 17 August 2007, and to the facts that these proceedings have been on foot for a period now extending over two years and that the plaintiff was to have been in a position it now says it will be in by 18 September 2007 by 8 December 2006, this is an appropriate case for there to be made an order, such as was made in Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379, that is, a self-executing order, dismissing these proceedings, in the event that the plaintiff fails to comply with those orders by 18 September 2007. In order to obviate any last minute glitch, Mr Tregenza moves for an extra few days which, in the circumstances, I will grant. 4 The orders of the Court will be: 1. Unless, by Wednesday 26 September 2007, the plaintiff has made verified discovery in accordance with the orders of the Court, that is, the order of Bergin J, made on 1 June 2007, and has filed and served an affidavit that it has so complied with that order, the plaintiff's claim shall be dismissed. 2. The plaintiff shall not, in the proceedings, be entitled to rely on any expert testimony, unless expert reports comprehending that testimony have been served on the defendants by Wednesday 26 September 2007. 3. I stand the matter over to the Commercial List on Friday 28 September 2007. 4. The plaintiff is to pay the costs of the motion. 5. I reserve the question as to whether the appropriate scale is the indemnity basis and whether the costs should be assessed and payable forthwith, to await the outcome of the plaintiff's compliance or otherwise with the order of 1 June 1007. 6. The parties have liberty to apply on 48 hours notice. 7.