Australian Steel Company (Operations) Pty Ltd (ACN 069 426 955) v Steel Foundations Limited (ACN 064 933 599)

[2003] FCA 1584

FEDERAL COURT OF AUSTRALIA

Australian Steel Company (Operations) Pty Ltd (ACN 069 426 955) v Steel Foundations Limited (ACN 064 933 599) [2003] FCA 1584

THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 069 426 955) v STEEL FOUNDATIONS LIMITED (ACN 064 933 599) AND STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417) AND STEEL FOUNDATIONS LIMITED (ACN 064 933 599) AND STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417) v THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 064 426 955) AND EVOLUTION PROFESSIONAL ENGINEERS PTY LTD (ACN 100 173 000)

V 506 OF 2002

DOWSETT J
11 DECEMBER 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 506 OF 2002

BETWEEN:

THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 069 426 955)
APPLICANT

AND:

AND:

STEEL FOUNDATIONS LIMITED (ACN 064 933 599)
FIRST RESPONDENT

STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417)
SECOND RESPONDENT

STEEL FOUNDATIONS LIMITED (ACN 064 933 599)
FIRST CROSS CLAIMANT

STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417)
SECOND CROSS CLAIMANT

THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 064 426 955)
FIRST CROSS RESPONDENT

EVOLUTION PROFESSIONAL ENGINEERS PTY LTD (ACN 100 173 000)
SECOND CROSS RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

11 DECEMBER 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The motion, notice of which was filed on 1 December 2003, be dismissed.

2.        The applicant pay the respondents’ costs of today.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 506 OF 2002

BETWEEN:

THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 069 426 955)
APPLICANT

AND:

AND:

STEEL FOUNDATIONS LIMITED (ACN 064 933 599)
FIRST RESPONDENT

STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417)
SECOND RESPONDENT

STEEL FOUNDATIONS LIMITED (ACN 064 933 599)
FIRST CROSS CLAIMANT

STEEL FOUNDATIONS CONTRACTING PTY LTD (ACN 069 670 417)
SECOND CROSS CLAIMANT

THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD (ACN 064 426 955)
FIRST CROSS RESPONDENT

EVOLUTION PROFESSIONAL ENGINEERS PTY LTD (ACN 100 173 000)
SECOND CROSS RESPONDENT

JUDGE:

DOWSETT J

DATE:

11 DECEMBER 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

1. This matter has been set down for trial for three weeks commencing on 8 March 2004.  It was set down, I think, on 4 July 2003 and directions were given at that time for the further conduct of the action.  The applicant now asserts that it is experiencing difficulties in preparing for trial and seeks to have the trial dates vacated and a new timetable adopted.  The reasons for the application are by no means convincing.  Whilst there have no doubt been a few bumps in the road, it does not seem to me that there has been any substantial change of position from that which obtained in July when directions were given.

2. It may be that the applicant’s legal advisers have, in some way, miscalculated in their preparation and now find themselves to be not as advanced as they had hoped.  It may be that the applicant has in some way contributed to that position.  However I see nothing in the material before me, or the explanations which have been given, which would suggest that with appropriate resources, the applicant cannot be ready for trial on the scheduled dates.  It may be inconvenient to the applicant and/or the applicant’s legal advisers, given the forthcoming vacation, but that can hardly be a basis for my vacating the trial dates, given the fact that they were fixed in July this year.

3. I am also asked to vary the order for delivery of witness statements so that the applicant’s experts will have an opportunity to see the lay evidence to be led by the respondents before offering their reports.  This, as far as I can see, is not a usual incident of trials of this kind.  Such evidence is normally prepared upon the basis of hypotheses provided by the party calling the expert in question.  To the extent that a party wishes to obtain expert evidence relating to the other party’s version of events, it can easily be done by reference to the pleadings.  I see no reason to depart from the orders made in July.

4. I note, in any event, that the lay evidence is to be provided two weeks before the commencement of the trial.  The trial is to run for three weeks.  It seems likely that the respondents will start, given that they appear to be seeking to make out the affirmative case.  In those circumstances, the applicant’s expert witnesses will have more than adequate opportunity to address the facts as advanced by the respondents in their evidence-in-chief, and as clarified in cross-examination, before they are called upon to commit themselves to final positions with respect to their evidence. 

5. It is by no means uncommon - indeed, it is almost the general rule - that experts update their reports as the case emerges.  I see no reason why that cannot be done in this case.  The directions will remain as they are.  I should say, though, that I assume that the parties will co-operate with a view to ensuring that preparation proceeds apace and that the case is ready at the scheduled time. 

6. I order that the applicant pay the respondents’ costs of today. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            5 January 2004

Counsel for the Applicant and First Cross Respondent:	Mr D Andrews QC Mr J Kewley
Solicitor for the Applicant and First Cross Respondent:	Freehills
Counsel for the First and Second Respondents and First and Second Cross Claimants:	Mr D Campbell Mr J Morton
Solicitor for the First and Second Respondents and First and Second Cross Claimants:	Adamson Bernays Kyle & Jones
The Second Cross Respondent did not appear.
Date of Hearing:	11 December 2003
Date of Judgment:	11 December 2003