Admost Pty Ltd v Tallwoods Pastoral Company and Angus Stud Pty Ltd

[2007] FCA 600

FEDERAL COURT OF AUSTRALIA

Admost Pty Ltd v Tallwoods Pastoral Company and Angus Stud Pty Ltd [2007] FCA 600

ADMOST PTY LIMITED, RICHARD PAUL SAPSFORD AND PAMELA ELIZABETH SAPSFORD v TALLWOODS PASTORAL COMPANY AND ANGUS STUD PTY LTD AND PHILLIP HANNAY
1894 OF 2005

COWDROY J
27 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1894 OF 2005

BETWEEN:

ADMOST PTY LIMITED
First Applicant

RICHARD PAUL SAPSFORD
Second Applicant

PAMELA ELIZABETH SAPSFORD
Third Applicant

AND:

TALLWOODS PASTORAL COMPANY AND ANGUS STUD PTY LTD
First Respondent

PHILLIP HANNAY
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	27 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicants’ Notice of Motion filed 29 March 2007 to vacate the hearing date be dismissed.

2.The applicants pay the costs of the respondents of and incidental to the hearing of this motion.

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	1894 OF 2005

BETWEEN:

ADMOST PTY LIMITED
First Applicant

RICHARD PAUL SAPSFORD
Second Applicant

PAMELA ELIZABETH SAPSFORD
Third Applicant

AND:

TALLWOODS PASTORAL COMPANY AND ANGUS STUD PTY LTD
First Respondent

PHILLIP HANNAY
Second Respondent

JUDGE:	COWDROY J
DATE:	27 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By Notice of Motion filed on 29 March 2007 the applicants seek an order that the hearing dates of 4, 5, 6 and 7 June 2007 be vacated on the basis that the second applicant (‘Mr Sapsford’) and the third applicant (‘Mrs Sapsford’) will not be in Australia during that time.

   FACTS

2. The proceedings commenced by Application and Statement of Claim filed on 7 October 2005. Since that time the matter has come before the Court for directions on 9 November 2005, 14 December 2005, 14 February 2006, 5 April 2006, 17 May 2006, 27 June 2006, 18 July 2006, 5 September 2006, 5 October 2006 and 24 November 2006. Orders made at the last directions hearing included orders for the provision of all further evidence to be relied upon by the parties at the hearing, the provision of written submissions, the provision of issues documents and a tender bundle and an order fixing the date for hearing. The date fixed for hearing, namely 4- 7 June 2007 was notified to the parties shortly after that directions hearing and was inserted in the record of orders made on that day.

   EVIDENCE AND SUBMISSIONS OF APPLICANTS

3. The applicants bring the motion on the basis that in September 2006 Mrs Sapsford arranged for herself and Mr Sapsford to travel to the United Kingdom and Europe using Frequent Flyer points between 23 May 2007 and 28 June 2007. The applicants claim that this is an annual holiday planned in August 2006 and that they are likely to incur cancellation fees if they are to cancel or postpone their flights in order to be present in Australia during the hearing.

   SUBMISSIONS OF RESPONDENTS

4. The respondents object to the motion seeking a vacation of the hearing date on the basis that the applicants have on several occasions failed to comply with orders of the Court in respect of the provision of evidence. The respondents claim that such delays have caused significant financial hardship to them. The respondents claim that in order to fund the litigation to date they have had to sell cattle and other assets including an aeroplane, the family home and two farming properties which were assets of their farming business. The respondents claim that any further delay in the hearing of the matter will result in further financial hardship to them and their business.

   FINDINGS

5. Order 30 Rule 7 of the Federal Court Rules provides that a date for trial fixed by the Court may be vacated only by order of the Court. The Court will not vacate a hearing date unless there are sound reasons for doing so and justice is done to all parties.

6. The matter was allocated a hearing date on 29 November 2006. The applicants were notified of such fixture by letter from their solicitor on 19 December 2006. No action was taken by the applicants to draw to their solicitor’s attention the fact that the date was inconvenient until mid to late February 2007. Further the applicants did not file their motion to set aside the hearing date until 29 March 2007, almost 4 months after the fixture was allocated.

7. The fact that the applicants did not recall that they had made arrangements in September 2006 to travel overseas from 23 May 2007 to 28 June 2007 is not a sufficient reason for the Court to vacate the hearing date, and even if it did so, no other hearing date could be allocated for several months. Parties to litigation must realise that Court time, once allocated for hearing, carries with it certain consequences. Not only are directions made to ensure that the hearing is ready at the appointed time, but the time allocated is to be exclusively used for the hearing of that proceedings. As a consequence this time is no longer available for the hearing of other proceedings.

8. The Court notes that the applicants have failed to comply with the orders of the Court in respect of the provision of evidence which were made on 18 July 2006 and 5 October 2006. Such defaults have resulted in delays irrespective of whether the respondents are responsible for similar delays.

9. On the basis of the above the Court is satisfied that the interests of the respondents in maintaining the hearing date outweigh any inconvenience likely to be experienced by the applicants due of their oversight.

10. Accordingly the Court will dismiss the application to vacate the hearing date.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       27 April 2007

Counsel for the Applicant:	A. Fernon
Solicitor for the Applicant:	O'Neill Marengo Lawyers
Counsel for the Respondent:	A. Radojev
Solicitor for the Respondent:	Viney Williams Lawyers
Date of Hearing:	27 April 2007
Date of Judgment:	27 April 2007