Abram v American Express International Inc

FEDERAL COURT OF AUSTRALIA

Abram v American Express International Inc [2000] FCA 1714

JOSEPH ABRAM v AMERICAN EXPRESS INTERNATIONAL INCORPORATED

N 648 OF 1999

HELY J
21 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 648 OF 1999

BETWEEN:	JOSEPH ABRAM APPLICANT
AND:	AMERICAN EXPRESS INTERNATIONAL INCORPORATED RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent pay any costs incurred by the applicant by reason of the respondent’s default and the necessity for the applicant to take out this motion.

2.The matter be adjourned to 9.30 am on Friday 15 December 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 648 OF 1999

BETWEEN:	JOSEPH ABRAM APPLICANT
AND:	AMERICAN EXPRESS INTERNATIONAL INCORPORATED RESPONDENT

JUDGE:	HELY J
DATE:	21 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. For the best part of a year the progress of these proceedings has been held up by problems relating to discovery.  Those problems were brought to a head on 1 August 2000 when Mr Abram wrote to the respondents seeking specific discovery of a class of documents which he identified in that letter.  When the matter came on for directions on 10 August 2000 I made an order for specific discovery of those documents by 8 September 2000 and gave directions as to the filing of evidence with a view to the matter being fixed for hearing.

2. I listed the matter for further directions on 13 November 2000.  The order for discovery was not complied with and when the matter was called on for directions on 13 November, Mr Abram appeared but the respondent did not.  Accordingly on 14 November 2000, Mr Abram took out a motion under Order 15 rule 16(1)(b) for entry of judgment in favour of the applicant because of the non-compliance with the discovery order by the respondent, and because of the respondent’s failure to appear at the last directions hearing.

3. That motion was returnable this morning.  When the matter came on for hearing, counsel for the respondent filed in Court an affidavit verifying a list of documents, which appears to have been sworn on 17 November.  The list of documents asserts that the respondent does not, nor has it ever had in its possession, documents the subject of the discovery order.  Given the nature of the motion which the respondent was facing, I was quite surprised that no affidavits had been filed explaining the failure to comply with the order for 10 August 2000, or explaining the non appearance by representatives of the respondent at the last directions hearing.

4. Thereafter, Mr Donovan of Kemp Strang, the solicitors for the respondent, gave oral evidence the substance of which was that the failure to comply with the discovery order and the failure to appear at the last directions hearing, was due to oversight on…