BP Australia Pty Limited v Nyran Pty Limited

[2002] FCA 903

FEDERAL COURT OF AUSTRALIA

BP Australia Pty Limited v Nyran Pty Limited [2002] FCA 903

PROCEDURE – trial dates – motion for amendment of directions

BP AUSTRALIA PTY LIMITED v NYRAN PTY LIMITED
W144 of 2002

RD NICHOLSON J
19 JULY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W144 of 2002

BETWEEN:	BP AUSTRALIA PTY LIMITED APPLICANT
AND:	NYRAN PTY LIMITED RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The amended orders dated 31 May 2002 be further amended by deletion of pars 1(b) and (c).

2.Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W144 of 2002

BETWEEN:	BP AUSTRALIA PTY LIMITED APPLICANT
AND:	NYRAN PTY LIMITED RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	19 JULY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These reasons are in response to the respondent’s notice of motion seeking to further amend amended orders dated 31 May 2002.  Paragraph 1 of those orders provided:

   “1.The trial of the issues (other than damages) be set down on the following basis:

   (a)   the trial be listed before Nicholson J from October 14 to October 25 2002

   (b)   in the event a judge in the Perth registry is available to hear the trial of those issues from 16 to 27 September 2002, the matter be set down before him on those dates in lieu of the listing referred to in par (a)

   (c)   in any event inquiries be made by the Registrar to ascertain whether a judge from any other registry is available to hear the trial of those issues from 16 to 27 September 2002, and, if so, the matter be set down before him or her in lieu of the listing in par (a)”

2. The respondent’s notice of motion seeks the deletion of pars 1(b) and (c) of the above order. 

3. Inquiries by the Registrar have established that a judge from another registry is not available to hear the trial from 16 to 27 September 2002.  There is therefore no reason why par (c) should not now be deleted. 

4. Paragraph 1(b) was introduced to accommodate the request of the applicant for an earlier trial date if a judge became available in the Perth registry.  The only possibility of that is if a settlement occurred in relation to litigation.  No such settlement has yet occurred.  It may not occur or, if it occurs, it may only occur immediately prior or proximate to the date of 16 September 2002. 

5. It is said for the respondent that its understanding was that the option provided for in par (b) was one in relation to which advice would be received reasonably soon after 30 May 2002.  It is apparent no such advice has become available nor is there any present indication that it will become available.

6. The respondent’s counsel is being offered trial briefs for the month of September.  The only way the respondent can seek to retain them for the period 16 to 27 September 2002 together with one weeks preparation time before that is to do so formally and to remunerate them accordingly.  The anticipated cost of two counsel will be approximately $8,000 per day.  The respondent states that it will be clearly prejudiced if it is obliged to retain and pay for some three weeks in September if the trial does not take place during that period and counsel have to be paid to represent the respondent in the October dates additionally.  The respondent therefore brings the present motion.

7. For the applicant it is submitted that the amended directions made on 31 May 2002 need consideration in accordance with par (2) which reads:

   “The parties confer to establish procedural directions to trial on the basis they should be ready for trial no later than 13 September 2002.”

   Accordingly, it is said, this supports the fact that the parties shared a consensus as at that the date when the amended orders were made that the earliest possible hearing date was desirable.  Therefore, it is said, any inconvenience and expense of accommodating the orders was self evident at that time. 

8. Additionally, it is submitted that the prejudice alleged by the respondent could be otherwise addressed by briefing different counsel.  It is submitted that the matter is not overly complex and would lend itself to that course of action. 

9. The applicant therefore submits that as there is nothing in the respondent’s supporting affidavit which could not have been contemplated when the orders were entered into, the deletion of par (b) should not be allowed. 

10. Every endeavour has been made pursuant to par (c) to find a judge to hear the matter at the earlier dates preferred by the applicant.  As has been said, that course has not yielded a satisfactory outcome.  The alternative course of action provided for in par (b) has likewise not yet yielded any outcome and may be unlikely to do so, if at all, until the very last moment.  In these circumstances I am satisfied that the parties would be better served by having a clear direction in relation to trial dates.

11. I am influenced to that course by the fact that the delay between the commencement on 16 September 2002 and a commencement on 14 October 2002 is not great in all the circumstances.  I am cognisant of the fact that the contract in issue in the litigation raises issues for consideration from 1 July 2002 in relation to the relationships between the parties.  However, I have in mind also that after the hearing of the trial, time must be allowed both for the preparation of reasons and for the expiration of any time within which to appeal or for the hearing of an appeal.  In that context the delay between 16 September and 14 October 2002 is not of great significance to the parties.

12. Accordingly, I consider that, whatever should have been the understanding of the parties at the time the amended orders were made, it is now appropriate to amend them by deleting pars (b) and (c).  The consequence is that the trial will proceed commencing on Monday, 14 October 2002.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated:            19 July 2002

Counsel for the Applicant:	Mr MS Van Brakel
Solicitor for the Applicant:	Clayton Utz
Counsel for the Respondent:	Mr D Goodman
Solicitor for the Respondent:	Freehills
Date of Hearing:	3 July 2002
Date of Judgment:	19 July 2002