Bridge & Marine Engineering Pty Ltd v Taylor & Anor

[2007] VSC 558

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
INTELLECTUAL PROPERTY LIST

No. 8003 of 2001

BRIDGE & MARINE ENGINEERING PTY LTD (ACN 059 317 396)	Plaintiff
- and -
ROBERT TAYLOR and AUSTRACK PROJECT MANAGEMENT PTY LTD (ACN 065 271 114)	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 NOVEMBER 2007
DATE OF JUDGMENT:	21 DECEMBER 2007
CASE MAY BE CITED AS:	BRIDGE & MARINE ENGINEERING PTY LTD v TAYLOR & ANOR.
MEDIUM NEUTRAL CITATION:	[2007] VSC 558

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PRACTICE AND PROCEDURE – Show cause direction given by judge – Whether proper compliance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Archer	Septimus Jones & Lee
For the Defendants	Mr P G Cawthorn	Ebsworth & Ebsworth

HIS HONOUR:

1. This proceeding commenced in 2001.  Of all the litigation I have had to manage over many years on the bench, it has proved to be the most difficult to get ready for trial.  The principals of the corporate parties are busy men, with other commitments – including much overseas travel.  Their health has at times been indifferent, or worse.  Obtaining instructions from them has on occasion caused problems for their legal advisors.  There have also, from time to time, been hints of obduracy - or perhaps worse - in their attitude to orders and directions of the Court.  And legal advisors have come and gone, resulting in added time as one set of lawyers after another has come to terms with a new client or new clients, and a fresh set of facts and issues to master.

1. Many assurances of improved co-operation with the Court have been given.  At a hearing on 24 April this year, there was even an eagerness, expressed with sincerity by both counsel, to co-operate with each other and the Court to bring the proceeding speedily to trial.  A change of solicitor and thus of counsel has modified the enthusiasm, although I attribute no blame to the lawyers for that.

1. On 9 May 2007, perhaps heady with the new and encouraging atmosphere, or simply lax in the formulation of directions then made, I gave the defendants leave to file and serve a further affidavit of documents by 4 pm on 2 July 2007.  I also directed that the defendants provide inspection of previously discovered documents by 4 pm on 30 July.

1. No further affidavit of documents was filed or served.  Inspection was not had.  The proceeding stalled once again on its slow journey towards resolution. In these circumstances, I ordered on 18 October 2007 that by 4 pm on 19 November the defendants file and serve an affidavit setting out in detail what attempts had been made by them to comply with the May orders, and that they show cause on 23 November why their defence should not be struck out and the proceeding go to trial as if undefended.

1. An affidavit in response to these orders was sworn by Mr Taylor on 20 November, a day after the deadline.  It was prepared by his fifth set of solicitors, possibly on the run after receiving late instructions from him.  (I bear in mind when saying this that Mr Taylor has sworn that the orders of 18 October were not received personally by him until 12 November, he having been under treatment for influenza, pneumonia and tuberculosis in the intervening period; and the documents eventually received by him having first been served at the registered office of the second defendant.)

1. Mr Taylor’s affidavit did not satisfactorily address the matters which, on the basis of the October orders, it should have addressed in detail.  In particular, there remain periods of inactivity by the defendants for which no explanation has been given.  In addition, the explanation for the failure to complete inspection, a failure in part at least explicable by reference to the relevant documents having been sent by the defendants to Sydney for reasons I do not fully understand was, I thought, less than frank. Yet they again ask, as the plaintiff for its part has also asked in the halting progress of this matter, for a further indulgence.  They resist any suggestion that the matter proceed as if undefended.

1. Given Mr Taylor’s ill health, and given that the “order” to provide a further affidavit of documents was expressed in terms of having leave to do so, I think that I ought not give effect to the threat to deal with the proceeding as if unopposed.  I bear in mind, too, that I am not in a position to make final findings of fact on some of the issues relating to the defendants’ apparently unsatisfactory response to the orders of May and October.

1. The plaintiffs have not yet succeeded in completing the inspection they seek of the defendants’ discovered documents.  It may be that issues of further discovery remain alive.  Inspection must be completed as soon as possible, and the defendants must move mountains if necessary to ensure that proper access is given to properly identified documents.  If the defendants fail in this regard, the prospect of the proceeding going forward as undefended will once more become real.  Then there must, after inspection, be another mediation.  I will hear the parties on the appropriate orders.

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