Bourke, M.V. v State Bank of New South Wales

[1994] FCA 503

SO3 9y

JUDGMENT No. ,.,.d ,.-,,.,

BETWEEN: -

First Applicant

LIMITED

Second Applicant

RFSTqYgaNTS PTY

LIMITED

Third Applicant

Fourth Applicant

RECEIVED

Fifth Applicant

Eighth Applicant

Ninth Applicant

-

Sixth Applicant

LIMITED

Seventh Applicant

-

Am:	P
WALES
Respondent

m.	Davies J.
lhb	7 July 1994
M:	Sydney

The motion be refused.

Settlement and entry of orders is dealt with in Order 36 of the Federal

Court Rules.

BETWEEN: -

First Applicant

Second Applicant

kRA REsTAURANTs PTY

LIMITED

Third Applicant

Fourth Applicant

-

Fifth Applicant

Sixth Applicant

-

LIMITED

Seventh Applicant

-

Eighth Applicant

Ninth Applicant

P

WALES

Respondent

m:	Davies J.
m:	7 July 1994
Sydney

This is a motion to vary orders made by Wilcox J on 15 June 1994 which

included an order that the proceedings be dismissed unless certain events occurred

His Honour ordered that the second to eighth applicants provide security for the

reapondent's costs in the sum of $40,000, either by cash deposit with the Registrar or by other means which his Honour specifued. His Honour also ordered that the

proceedings should stand dismissed unless that security was provided no later than

Friday, 1 July 1994 and unless the applicant companies had by that date filed and

sewed an amended statement of claim and all affidavits on which they proposed to rely at the trial in respect of issues of liability.

His Honour selected the figure of $40,000 but indicated that it would be an

interim figure, and that the $40,000 would soon be exhausted. The proceedings had commend on 2 September 1988. Accordingly when these proceedings came before

hi6 Honour in June 1994, they had been on foot for almost six years. The applicants'

statement of claim had still not been settled, or at least the statement of claim in the form desired by the applicants had not been settled, and the affidavits on which they

relied had not been filed.

His Honour was the judge dealing with the directions over the whole of the period. The respondent's motion for dismissal was brought on 15 September 1988. On 5 June 1992, the respondents filed another motion. This second motion ultimately came before his Honour in June 1994 and sought dismissal on the ground of failure to prosecute the proceedings, and alternatively an order for the provision of security for

costa.

This motion was not determined in 1992 for at about that time, the first

applicant, Mr Michael Vincent Bourke, became subject to bankruptcy proceedings.

Mr Bourke subsequently appealed against a sequestration order. The appeal was

dismisse.d in Dtcember 1993. Over that period his Honour gave to the applicants a good deal of leeway, so that Mr Bourke could attend to matters which would have

seemed to him	at the time to be more pressing.
But it is clear that, by May 1992, his Honour thought that the proceedings had dragged on far too long without any progress. In May 1992 his Honour granted leave to the respondent to file a motion for dismissal for want of prosecution andlor for

security for cost and that was done. His Honour presided in a number of directions hcaringa throughout 1992 and 1993 but, in general, his Honour did not insist that the matter be progressed until the appeal had been completed This appeal was finalised in December 1993. In March 1994 his Honour ordered that any further amendments to the statement of claim be filed and sewed not later than 14 March 1994 and that

any &davits upon which the applicants were to rely be filed and sewed by that date.

His Honour stood the motion over until 30 March 1994. The matter seems to

have come on on 29 March when his Honour fmed the motion for hearing on

Wednesday l5 June, directing that an amended statement of claim be filed and sewed

by Friday, 27 May. When the matter came on before his Honour on 15 June, it

appeared that the matter had not progressed. Mr Svehla of counsel attended rcpnsenting the company applicants. At that time, he had neither a solicitor nor any of the persons from whom he could receive instructions. These persons arrived at a

late time during the hearing of the motion before his Honour.

His Honour was informed that there had been no response to the directions which he had previously given. His Honour was further informed that the amended statement of claim, though settled by counsel, was apparently not ready to be filed. His Honour was informed that there were not even any &davits in respect of the application for security for mts . His Honour commented:

*Given tbc history of this matter, and given the number of adjournmenfa, I wish Mr BowLe was here to hcer me aay this, but quite frankly I think I have leant over bachmda to help him in what is obviously a difticult period of his life and a difficult

casz I have given him many adjoununenfa, often over the protcso of Mr RusscU or

mmebody on behalf of the State

Hh Honour went on to say:

I would have thought it was not asking too much for the client perhap to have come

down born Mtland to Sydney:

It appears that Mr Bourke did arrive later during the morning.	His Honour then
made the orders that I have mentioned.

By 1 July, the applicants were in the position to file an amended statement

of claim and an affidavit by Mr Bourke but the other affidavits upon which the applicants intended to rely at the trial had not been prepared. I am now informed by Mr Svehla that there will be a large number of people in the Maitland area to

iute~ew, that these people have not been interviewed and that several months will be required for the preparation of affidavits. That really means that the preparation

of the case is at a very earb stage. Relevant witnesses have not been interviewed.

The security for costs is not a matter which would trouble me very much if that

were the only problem. Mr Winter, who is the director of some of the applicant

companies, haa d e p e d that he can raise $10,000 within 7 days and can pay a further

$5000 a month until the $40,000 is paid off. I would see no reason not to make some

appropriate order with respect to security for costs. I think that this is a minor matter

in the case.

But the question is now whether, after all this time, his Honour's orders should

be varied so as to permit this case to proceed in light of the fact that, after six years,

the case is still at a preliminary stage. Although the applicants are ready to file a statement of claim and have tiled an affidavit of Mr Bourke, the applicants still have to iwcstigate other witnesses to ascertain what the case is about and how to prove i t

It is to be kept in mind that proceedings which rely upon section 52 of the

Trade 1974 (Cth) should be instituted and prosecuted promptly.

Section 82 of the Trade Act provides that an application should be commend within three years after the date in which the cause of action has accrued.

This proceeding was instituted within the three year period but effectively nothing has

happened. Despite the thickness of the file, the applicants are not ready to present

their case. The question that I have to ask myself is whether this matter should now be allowed to proceed notwithstanding all efforts Wilwx J has made to have the matter prepared or whether the time has wme to bring to an end a matter which has not been prosecuted.

One of the factors that I have to take into account is the absence of an affidavit from the applicants' solicitor deposing to the fact that his firm is in funds. Indeed, at the present time, it appears that the firm has not been remunerated for the work done to date. Moreover, there is no affidavit from the solicitor setting out a program as to what is going to happen or, for that matter, explaining why all the

delays have occurred in the past.

The affidavits on which Mr Svehla relies are principally the affidavits of Mr Winter, the director, who proposes to put up the money for the security for costs. He has deposed that Mr Bourke has had the conduct of the litigation to date, and that Mr Bourke has not been well. That might be so, but Mr Winter himself has been a director since January 1993. So he, like the other persons wnnected with the

applicants, has had responsibility for the matter.

In my view, the delay has been so great that it would be wrong at this point of

time to vary the orders made by Wilcox J. I refuse the motion.

I certify that this and the 6 preceding pages

are a true copy of the reasons for j dgment herein

of the Honourable Mr Justice Da es.

P

Associate:

Date:	7 July 1994
Counsel for the 2nd to 8th applicants:	J.T. Svehla
Solicitors for the 2nd to 8th applicants:	Keith McConnell
Counsel for the respondent:	D.J. Russell
Solicitors for the respondent:	P.W. Kearns
Date of he-ming	7 July 1994
Date of judgment:	7 July 1994