Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd (No. 2) - [2011] VSC 685

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2005 10032

AUSTRACK INFRASTRUCTURE DEVELOPMENT PTY LTD (ACN 065 271 141) AND ORS (according to the schedule attached)	Plaintiffs
v
SHARVINE PTY LTD (ACN 080 518 396)	First Defendant
- and -
TRANSPACIFIC CLEANAWAY PTY LTD (formerly known as Brambles Australia Limited) (ACN 000 164 938)	Second Defendant

---

JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	In chambers
DATE OF JUDGMENT:	24 November 2011
CASE MAY BE CITED AS:	Austrack Infrastructure Development Pty Ltd and ors v Sharvine Pty Ltd and anor (No. 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 685

---

PRACTICE AND PROCEDURE-Application for adjournment of the hearing of procedural applications on medical grounds- Nature of medical evidence required-Limited nature of instructions to solicitors required-Application refused

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Robert Taylor, director
For the Defendant	Mr C.P. Young	Thomsons Lawyers

HER HONOUR:

By orders made 7 November 2011, I adjourned three interlocutory summonses in these proceedings for further hearing on 16 December 2011. That order was expressed to be subject to an order that permitted the director of the plaintiffs to file and serve an affidavit “as to proposed medical treatment overseas by reason of which he seeks further adjournment” by 4.00 pm on 14 November. The defendants were permitted to file an affidavit and/or submissions in response. The order provided that any such adjournment application would be considered in chambers.

Mr Taylor filed an affidavit on 14 November seeking adjournment for the indicated reasons. The defendants filed submissions on 21 November opposing the grant of any adjournment.

The summonses that have been adjourned are the defendants’ summons filed 18 March 2011 seeking dismissal of the proceedings, the plaintiffs’ summons filed 17 October 2011 seeking reinstatement of the proceedings and other orders (the proceedings are currently stayed), and the defendants’ summons filed 22 September 2009 seeking security for costs. There is a long history to these applications which is set out in my reasons delivered 17 November 2011 for the orders made on 7 November 2011. In short, the defendants’ summons filed 18 March 2011 seeking dismissal of the proceedings is part‑heard, argument by the defendants having been put on 28 September 2011. The summons was adjourned to 7 November 2011, but on that date the entire time available was consumed by the plaintiffs’ application that Mr Taylor be granted leave to represent them. I refused that application on 7 November. The defendants’ summons for security for costs has not been heard, notwithstanding that it was filed more than two years ago. The delay has been due to adjournments requested by the plaintiffs on the basis of Mr Taylor’s ill health and other aspects of the plaintiffs’ conduct of the proceedings. The plaintiffs’ summons filed 17 October 2011 seeking reinstatement of the proceedings was occasioned by the plaintiffs permitting their registration as companies to lapse. It has not been heard to date.

The issue currently before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Austrack Infrastructure Development Pty Ltd v Sharvine Pty L... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 685
Decision Date: 24 November 2011

CaseChat Overview and Summary

In the case of Austrack Infrastructure Development Pty Ltd versus Sharvine Pty Ltd (No. 2), the parties were engaged in a legal dispute before the court. The nature of the dispute centred around an application for an adjournment of the hearing of procedural applications, which was sought on medical grounds. The matter was heard in the Federal Court of Australia. The primary concern was whether the application for adjournment should be granted based on the medical evidence provided and the instructions given to the solicitors representing the parties.

The court was required to decide the legal issues surrounding the nature of the medical evidence needed to substantiate the application for an adjournment on medical grounds. Furthermore, the court considered the extent of instructions given to the solicitors regarding the medical evidence and the application. The court's task was to balance the need for procedural fairness and the importance of timely resolution of the dispute against the medical circumstances of the applicant.

The court examined the medical evidence presented and found it insufficient to support the application for an adjournment on medical grounds. The court also noted that the instructions provided to the solicitors were limited and did not sufficiently address the medical evidence. Consequently, the court concluded that the application for adjournment was not warranted, and the hearing proceeded as scheduled. The court emphasised the importance of providing clear and comprehensive instructions to solicitors and ensuring that adequate medical evidence is presented when seeking an adjournment on medical grounds. The court's decision highlighted the need for parties to adhere to procedural requirements and maintain a high standard of evidence in legal proceedings.

Orders