Auspine Ltd v H S Lawrence and Sons Pty Ltd

[2000] FCA 1405

FEDERAL COURT OF AUSTRALIA

Auspine Ltd v H S Lawrence & Sons Pty Ltd [2000] FCA 1405

Re McGorm; Ex parte the Cooperative Building Society of South Australia
(1989) 20 FCR 387 applied

Federal Court Rules O 15 r 16(1), O 15 r 16(2)

AUSPINE LIMITED v H S LAWRENCE & SONS PTY LTD & EMAIL LIMITED

NO SG 28 OF 1997

O’LOUGHLIN J
ADELAIDE
6 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 28 OF 1997

BETWEEN:

AUSPINE LIMITED
APPLICANT

AND:

H S LAWRENCE & SONS PTY LTD
FIRST RESPONDENT

EMAIL LIMITED
SECOND RESPONDENT

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

6 OCTOBER 2000

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.Further consideration of the respondents’ notice of motion dated 11 May 2000 is adjourned sine die.

2.Any party is at liberty to apply to have the matter relisted on seven days notice.

3.The question of the costs of this application (including the application for an order for indemnity costs) be reserved for the trial judge.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 28 OF 1997

BETWEEN:

AUSPINE LIMITED
APPLICANT

AND:

H S LAWRENCE & SONS PTY LTD
FIRST RESPONDENT

EMAIL LIMITED
SECOND RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	6 OCTOBER 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is another chapter in the drawn out discovery battle that has plagued this piece of litigation since 12 November 1997.  On that date the court ordered each party to file and serve its verified list of documents by 30 January 1998.  On 21 December 1999, I published reasons for judgment.  On that occasion I made certain orders requiring the applicant to make further and better discovery.  Least it should be thought that that statement means that all fault lies with the applicant, I hasten to add that I identified in my reasons many of the respondents’ demands that were found to be unwarranted.  In those reasons for judgment I identified the parties, many of their intended witnesses and an outline of the claims and counter claims that have been made.  I will not repeat that information except where it is necessary to explain an aspect of my present reasoning.

2. The orders of 21 December 1999 required the applicant to file and serve by 18 January 2000 a verified list of ten documents:  see subpars 1(a) – 1(j).  In addition the applicant was to serve a copy of each of the documents on the respondents by the same date.  Paragraph 3 of the orders addressed the subject of lost or destroyed documents; it required the applicant to cause an affidavit to be filed explaining (should it be the case) details of any lost or destroyed documents.  The order was in the following terms:

   “3.In respect of any of the categories of documents set out in 1(a) – (j) above where such documents have been lost or destroyed, the…