Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd

[1991] FCA 666

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IN THE FEDERAL COURT OF AUSTRALIA	)
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NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 246 of 1990

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GENERAL DIVISION , )

BETWEEN:	BOMANITE PTY LIMITED First Applicant
BOMANITE CORPORATION INC

Second Applicant

JONATHON NASVIK

Third Applicant

JON'S DESIGNS INC

Fourth Applicant

DENNIS A. PAUL

Fifth Applicant

G & M TERRAZZO CO INC

Sixth Applicant

AND:  SLATEX CORP. AUST. PTY
LIMITED

First Respondent

SLATECRETE PTY LIMITED

Second Respondent

BRENDAN ROBERTS

Third Respondent

NEIL LAURIE

Fourth Respondent

ROBBIE BURKE

0 8 NOV 1991	Fifth Respondent
FEDERAL COURT OF
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AUSTRALIA	SLATEX CORP. AUST. PTY
PRINCIPAL	LIMITED
REGISTRY	Cross Claimant

BOMANITE PTY LIMITED

Cross Respondent

6 NOVEMBER 1991

REASONS FOR JUDGMENT

LOCKHART J. :

On 25 October last the Court heard two motions, one seeking
an order that the applicants be given leave to join a company,

Cookville Pty Limited, as an additional respondent, and certain

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other matters. The second motion dealt with matters to which I

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need not refer. They are all fully dealt with in my reasons for ,

judgment given on that day.	One of the orders made on that day	;	1
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was that any evidence additional to evidence already filed upon	l.:.. h
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which the applicants may seek to rely as against Cookville, be	! .
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filed and served by 4 -00 pm on Tuesday 29 October, and the Court	i..'
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noted that such evidence was either evidence in the form of	F::
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affidavits or draft affidavits that the court had before it on	C'
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25 October or fresh affidavits which will place in better form	p>;
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certain of that material.	,  ~...
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What has happened since is that the applicant's seek to file and to rely upon further affidavits, including an affidavit of	1':  .,
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Dennis Alfred Paul and Jonathan Nasvik. Those affidavits are	I. .'- F ,,
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presently in draft form and they are before the Court this	L % . p::.
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morning and they follow, but not exactly, draft affidavits of the	I:.
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same deponents that were before the court on 25 October. I do	+..
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not propose to traverse the history of the matter or to deal with
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the course of events on 25 October, except to say this. It was ... . ,

a lengthy hearing before me on that occasion and senior counsel

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for the applicants, in the conduct of his case, made it very

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clear that the affidavits of Mr Paul and Nasvik on which he

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wished to rely were in one of two categories of affidavits;

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namely, affidavits that he wished to put on so that they could

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put in proper form evidence that had hitherto been in improper

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form and not in the second category, namely, evidence upon which

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reliance was sought to be placed as against Cookville.

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The applicants now seek to use ,the affidavits of M r Paul and

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M r Nasvik, after they have been sworn, only as against Cookville.	v:.
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To the extent that this course of conduct is contrary to what was	F
said to me by senior counsel on the last occasion, counsel seeks
to resile from the stance taken by senior counsel. In my opinion
the course that the applicants wish to take this morning with	c :..
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respect to those two affidavits is a course that is plainly in	L<$ l\.. F,:
conflict with the conduct of the case hitherto and as conducted	F:
before the court on 25 October by senior counsel for the	*.
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applicant and its effect would be to undermine the very	I :
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substratum of the judgment which I gave on that occasion.	I::
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Accordingly, I decline to allow the proposed affidavits of M r .
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Paul and Nasvik to be used at the trial.	e ;
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I certify that this and the	1;
preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable
Mr. Justice Lockhart.
Associate	i I
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Dated: 6 November 1991	. :
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Counsel for the Applicant M B Evan L,.:,

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Solicitors for the Applicant :  Dynon & Dynon

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Counsel for lst, 3rd, 4th,	,. .'i
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5th Respondents	M R Ellicott
Solicitors for lst, 3rd,
4th, 5th Respondents	Abbott Tout Russell Kennedy
Date of Hearing	6 November 1991
Date of Judgment	6 November 1991