Breakthrough Australia Pty Ltd v Halpin

[2010] FMCA 519

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BREAKTHROUGH AUSTRALIA PTY LTD v HALPIN [2010] FMCA 519

PRACTICE AND PROCEDURE – Application in a case for summary judgment – failure by applicant to file reply and defence to counter-claim on time – applicant cannot be said to have lost interest in the proceedings – no significant prejudice to the respondent by late filing – application in a case dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.13.04

Willis v Western Australia (No 2) [2009] WASCA 205

Applicant/Cross-Respondent: BREAKTHROUGH AUSTRALIA PTY LTD

Respondent/Cross-Claimant: JOHN ARTHUR HALPIN

File Number: PEG 59 of 2010

Judgment of: Lucev FM

Hearing date: 19 July 2010

Date of Last Submission: 19 July 2010

Delivered at: Perth

Delivered on: 19 July 2010

REPRESENTATION

Counsel for the Applicant: Mr A. Rumsley

Solicitors for the Applicant: Alan Rumsley

Counsel for the Respondent: Mr J. Riley

Solicitors for the Respondent: Elevation Legal

ORDERS

1. The time for compliance with Order 2 of the Court’s Orders of 31 May 2010 be extended to 8 July 2010, the date of actual filing.

2. The time for compliance with Order 3 of the Court’s Orders of 31 May 2010 be extended to 30 July 2010.

3. The respondent’s application in a case be dismissed.

4. The costs of today be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 59 of 2010

BREAKTHROUGH AUSTRALIA PTY LTD

Applicant/Cross-Respondent

And

JOHN ARTHUR HALPIN

Respondent/Cross-Claimant

REASONS FOR JUDGMENT

(Ex tempore – revised from the transcript)

1. There is an application in a case before the Court for various orders. In the circumstances, it is necessary to note that on 31 May 2010, the Court ordered that the respondent file and serve a defence and any counter-claim by 11 June 2010, and that was done. There was then an Order, Order 2 of the Court’s Orders of 31 May 2010, that the applicant file and serve any reply and defence to counter-claim by 25 June 2010. That was not done, and there was no agreement between the parties for an extension of time in relation to the filing of any reply and defence to counter-claim. The circumstances in which that had occurred, including the illness of the solicitor for the applicant, are recounted in an affidavit filed by Mr Rumsley today, shortly before this hearing.[1]

   [1] Affidavit of Alan Phillip Rumsley, sworn 19 July 2010.

2. The application today, which seeks Orders that the application be dismissed and for payments as a consequence of the failure to file any reply and defence to counter-claim, is pressed by the respondent. It is true to say, as Buss JA has recently observed in the West Australian Supreme Court, that the failure to comply with timelines is not something that simply ought to be allowed to happen and that parties ought properly make applications,[2] and I would add, seek consent orders from the other side if they have not complied with the time table.[3]

   [2] Willis v Western Australia (No 2) [2009] WASCA 205 at para.12 per Buss JA.

   [3] Federal Magistrates Court Rules 2001 (Cth), r.13.04.

3. The circumstances in which the defence to cross-claim was not filed have been explained in a manner which, in the Court’s view, is satisfactory in these proceedings. The Court takes into account, in making a determination in relation to the matter, that although it is said by the respondent’s Counsel that his client seeks to have this application pressed because they considered that the applicant had lost interest in the proceedings, that the defence to cross-claim was, in any event, served on 8 July 2010 and there has been a mediation listed in this matter for Friday, 23 July 2010. And in those circumstances, the Court is simply unable to come to the view, as is put by the respondent, that the applicant can be said to have lost interest in these proceedings. Furthermore, and in any event, there is no evidence that the late filing or the failure, prior to 8 July 2010, to file a defence to cross-claim results in any prejudice other than the usual prejudice attached to late filing.

4. In the above circumstances, the Court considers that the application in a case ought to be dismissed and that there ought to be Orders for time for compliance with Order 2 of the Court’s Orders of 31 May 2010 to be extended to 8 July 2010, the date of actual filing, and there will be an Order to that effect. There ought to also be an Order that time for compliance with Order 3 of the Court’s Orders of 31 May 2010 be extended. In the circumstances, it is not the case that Mr Rumsley seeks to have a reply to defence to cross-claim filed prior to the mediation this Friday and he informs the Court that he believes there is sufficient material for the matter to go to mediation. No doubt, if a draft of the reply is available before the mediation, it will be sent to the other side but, in any event, the mediation can, in the Court’s view, progress on the materials which have presently been filed, and therefore, there will be an Order that time for compliance with Order 3 of the Court’s Orders of 31 May 2010 be extended to 30 July 2010. There will be an Order, given what the Court has said, that the respondent’s application in a case be dismissed. There will be an order then that the costs of today be reserved.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  20 July 2010