Altronic Distributors Pty Ltd v Pumpernickle Nominees Pty Ltd

[1989] FCA 309

IN THE FEDERAL COURT

OF AUSTRALIA
WESTERN AUSTRALIA

DISTRICT REGISTRY	I
GENERAL DIVISION	1 NO. WAG 145 of 1987 '%\4
B E T W E E N :	ALTRONIC DISTRIBUTORS PTY LTD

Applicant

and

PUMPERNICKLE NOMINEES PTY LTD

Respondent

C O W :  FRENCH J.
26 MAY 1989

EX TEMPORE REASONS FOR DECISION

This matter has a sorry history and some of that has been recounted in submissions made by counsel for the respondent on this motion to dismiss the application for non-compliance with orders of the Court. The motion is brought under 0.10 r.7 which provides in the relevant parts that:

" 7 ( 1 ) Where a party fails to comply with an order

of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -

l

( a ) if the party in default is an applicant - for

an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;

(b) if the party in default is a respondent - for judgment or an order against him; or

(C) for an order that the step in the proceeding

be taken within the time limited in that
order.

(2) The Court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.

(3) This rule does not limit the powers of the

Court to punish for contempt."

Reference has been made in the course of submissions to the judgment in Charlie Carter Pty Ltd v The Shop Distributive and Allied Employeesf Association of Western Australia (1987) Australian High Court and Federal Court Practice 65-328, where in reliance upon Birkett v James [l9781 AC 297 and Allen v Sir Alfred McAlpine h Sons Ltd (1968) 2 QB 229, I observed that:

"There may be a case for the dismissal of an action vnaer u.iO wnere tne appilcant's default has been intentional and contumelious or where there has been inordinate and inexcusable delay such that the respondent would be seriousl, ;r;,ddiced." (96,482)

So far as the second limb is concerned, whlle there has been a degree of delay as a consequence of the non-compliance wlth directions on this and earlier occasions, there is no evidence to indicate that the respondent has suffered irreparable prejudice thereby. And I do not think that it is seriously contended that that is the case. It is rather put on the basis that this latest non-compliance is a culmination of a continuing course of failure to obey the Courtls directions.

MC Goldfinch says, perhaps a little dramatically, that if the application is not dismissed on this occasion then there is no occasion on which the rule can be lnvoked to dismiss summarily for default. I think that is putting it too high. In my opinion, the evidence discloses lack of organisation on the part of the applicant's solicitors In relation to this breach and some others, but does not reflect an intentional or contumelious disregard of the Court's order. Obviously, a point may be reached in a history of non-compliance where the only inference that can be drawn is that the party concerned is so careless of the organisation of its affairs in relation to the orders of the Court that that carelessness reflects a contemptuous disregard for those orders. Although this case is moving close to that point, it has not yet been reached. I am satisfied, however, that orders should be made which will drive home the importance of compliance with the Court's directions. In doing so, I want to emphasise that the Court recognises that parties and their advisers may run into pracclcai dlfficuicies in compiiance wich cimecabies and has procedures which are available to overcome those practical dlfflculties with a minimum of expense. Consent orders for extensions of time or variation of programmes do not require any personal attendance (see 0. 35 r.10). It is always possible for a party between directions hearings to apply for an extension of time if, for practical reasons, an order cannot be complied with and a consent cannot be extracted from the other side. In this case, there has been a lamentable failure on the part of the applicants to avail themselves of these procedures.

The orders I propose to make reflect my view that so far as the latest matter is concerned, the difficulties reside in the office of the applicant's solicitors and are not to be sheeted home to the applicant.

1.    The motion be dismissed.

2.   The applicant's solicitors are to pay the respondent's solicitor and cllent costs of the motion.

3.   The applicant is to file and deliver any draft interrogatories on or before 2 June 1989.

4.   In the event that interrogatories are not filed within that time, the respondents will be at liberty to set the matter down for trial.

5.   The applicant's solicitors are to advise their client of the orders made today and of the fact that their client is not obliged to pay the costs thereof. Such advice is to be verified by an affidavit filed herein by the applicant's soiicicors wlcnin seven days.

6.    The directions hearlng is adjourned to 9 June 1989 at 9.15 at which time the question of leave to interrogate on the part of the applicant will be considered.

I should add that the verification requirement imposed in paragraph 5 of the above orders does not reflect any adverse view of the sense of honour or integrity of the applicant's solicitors. It is, in my opinion, a requirement which ought to be imposed whenever such an order is made.

I certify that this and the preceding

three (3) pages are a true copy of
the Ex tempore reasons for judgment

of his Honour Justice French.

Date: 2 6 5 ey

Counsel for the Applicant: Mr Scott

Solicitors for the Applicant: Stables 6 Co.

Counsel for the Respondent: Mr Goldfinch
Solicitors for the Respondent: Warren Harrison

Date of Hearing: 26 May 1989 Date of Judgment: 26 May 1989