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

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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

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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; l;.:

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namely, affidavits that he wished to put on so that they could i -
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put in proper form evidence that had hitherto been in improper 1.- ,.' ,. .
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form and not in the second category, namely, evidence upon which , -
reliance was sought to be placed as against Cookville. p ::

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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

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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

Details

AGLC: Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd [1991] FCA 666
Case: [1991] FCA 666
Decision Date: 6 Nov 1991

CaseChat Overview and Summary

In the Federal Court of Australia, Bomanite Pty Ltd and others sought to join Cookville Pty Limited as an additional respondent in their action against Slatex Corporation Australia Pty Ltd and others. The applicants also sought to rely on further affidavits from Dennis Alfred Paul and Jonathan Nasvik, which they intended to use specifically against Cookville. The legal issues the Court needed to address included whether the applicants were entitled to join Cookville as an additional respondent and whether the proposed affidavits from Paul and Nasvik could be used at the trial.

The Court held that the course of conduct taken by the applicants in relation to the affidavits of Paul and Nasvik was contrary to what had been communicated to the Court on the previous hearing. The Court observed that the applicants' current stance, which sought to use these affidavits only against Cookville, undermined the basis of the judgment given on the previous hearing. The Court declined to allow the proposed affidavits of Paul and Nasvik to be used at the trial, as it found that such a course of conduct was in conflict with the conduct of the case hitherto and would undermine the substratum of the previous judgment.

The Court's decision was grounded in the need for consistency and fairness in the proceedings. By declining to allow the proposed affidavits to be used at the trial, the Court aimed to maintain the integrity of the judicial process and ensure that the parties adhered to the established procedures and representations made before the Court. This decision underscored the importance of adhering to the commitments made during the course of litigation and preventing any attempts to introduce new evidence that could potentially mislead the Court or prejudice other parties.

Orders