Betta Cones Co Pty Ltd v Microbyte Investments Pty Ltd

[1989] FCA 857

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG412 of 1988
GENERAL DIVISION	1

BETWEEN: BETTA CONES CO. PTY. LTD. and BETTA FOODS AUSTRALIA PTY. LTD.

Applicants

AND: MICROBYTE INVESTMENTS PTY. LTD. (trading as "Kouklis Cones") and MILTON PAPADOPOULOS

Respondents

AND : M1 CROBYTE INVESTMENTS

PTY. LTD. (trading as "Kouklis Cones") and MILTON PAPADOPOULOS

Cross-Claimants

AND: BETTA CONES CO. PTY. LTD. and BETTA FOODS AUSTRALIA PTY. LTD.

Cross-Respondents

CORAM :	Jenkinson J.
PLACE :	Melbourne
DATE :	27 September, 1989
this proceeding will commence on the date specified by the	fixing of a date for hearing at a call-over, that the hearing of

REASONS FOR JUDGMENT

The application, to leave aside linguistic questions, is
in substance an application that the Court either give an
assurance, of greater firmness than is to be implied from the

call-over judge as the date for commencement of the hearing, or alternatively, if that assurance is not given or perhaps if the Court were to express any particular or more than usual doubt about the commencement of the case on its fixed date, the application is that it be taken out of the list of cases for hearing and fixed for hearing on a date in respect of which either the Court would give the assurance to which I have referred or, alternatively, concerning which the Court would make an expression of the kind of confidence that is apparently sought.

In my opinion, this is not a case in which either application ought to be acceded to. I would have thought that it would be a rare case indeed in which either of those courses was taken, and certainly more than the risk of inconvenience and expense to a well-furnished party would be needed. Even if the Court were disposed to give a more favourable hearing to an application of this kind than I have indicated, the Court would certainly expect that the party who made the application would have made careful enquiries in writing to determine what the applicant expected would be the time at which the witness would be

able to give his evidence. That has not been done.

Those who conduct litigation in this Court must make their own evaluation of the chances of a case fixed for hearing in the ordinary way, as this was, not starting on the date that is specified. It is perhaps not appropriate that the judges of the Court express their own opinions as to what those chances ordinarily are. Certainly in saying what I have, I have taken into account what my own experience has been in this Court of what

one might call the failure rate of a start on the day, and nothing in that experience inclines me to view this application with any favour.

Something was said about apprehension born of the circumstance that the date fixed for the commencement of the hearing was a date on which some other case was fixed for hearing. Why that should cause concern I am not sure, unless it is thought that only one judge will be hearing single judge matters at that time. I can indicate, I think, that the judge presently assigned to hear this case does not have any other case fixed for hearing on that date. The motion in both its aspects is refused. I do not propose to make any order with respect to costs.

I certify that this and the 2 preceding pages are a true copy of the Reasons for Judgment of The Honourable Mr. Justice Jenkinson.

Dated: 27 September, 1989