Camerons Unit Services Pty Ltd v Kevin R Whelpton & Associates (Aust) Pty Ltd

[1985] FCA 380

IN THE FEDERAL COlTRT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.276 of 1984
)
GENERAL DIVISION	)

BETMEEN: CAMERON'S UNIT SERVICES

PTY LIMITED

First Applicant

DONALD CAMERON

Second Applicant

m: KEVIN R WHELPTON &	ASSOCIATES (AUST) PTY
LIMITED

First Respondent

KEVIN WHELPTON

Second Respondent

CORAM :	WILCOX J.
m:	18 JULY 1985
PLACE :	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

- - - . . . . . . .. .

1. The proceeding constituted by the Application be

dismissed fo r want of prosecution; such dismissal to

be without pre~udice to any rights of the applicants

2.

to brlng fresh proceedmgs or to clam the same

relief in fresh proceedings.

2.	Leave granted to the respondents	to dlscontinue the
Cross-claim.

3 . The applicants to pay the respondents' costs of the

Application and the Cross-claim. Those costs are to

Include the costs of the Notice of Motlon t.iled on 19

June 1985 Including the costs of all attendances on

thls Motlon; but such order IS not to affect the

order made by the Court on 19 December 1484 in

relatlon to the Motion for stay on that day.

4 . No order for costs in respect of the Notice of Motion

filed on 13 March 1985.

NOTE :

Settlement and entry of orders 1s dealt wlth In

Order 36 of the Federal Court Rules.

.

NOTE: This extempore Judgment 1s not for general distribution and catchwords are not therefore attached.

IN THE FEDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.276 of 1984
)
GENERAL DIVISION	)

BEPWEEN: CAMERON'S UNIT SERVICES

PTY LIMITED

First Applicant

DONALD CAMERON

Second Applicant

-	AND:	KEVIN R WHELPTON &
ASSOCIATES (AUST) PTY
LIMITED

First Respondent

KEVIN GWXPTON

Second Respondent

CORAM :	WILCOX J.
m:	18 JULY 1985
PLACE :	SYDNEY

I

EXTEMPORE REASONS FOR JUDGMENT

2. I

In this matter I dealt wlth an applicatlon tor a stay

of proceedings made by the respondents on the basls of pendlng

crlmlnal proceedings and In a Judgment dated 19 December 1984

I held that the proceedlngs should continue in the usual way.

At that time I varied the dlrectlons whlch I had

previously made so as to require the service by the applicants

of all affidavits on or before 11 January 1985 and service of

affidavits of the respondents on or before 1 February 1985. I

fixed a hearing date for a trial to commence in February 1985.

Unfortunately, it was necessary for me to vacate that

hearing date because of the failure by the applicants to

comply with the directions as to the filing of affidavlts.

Subsequently, a further hearing date was fixed for a trial

commencing In June 1985. The affidavits of the parties were

in due course filed, although not In accordance with the

directions, and interrogatories were administered and answered

and discovery was had.

However, just when it appeared that the matter might

be able to proceed to trlal In June, the solicitors for the

applicants announced their withdrawal from the matter and they

have subsequently filed a Notice of Discontlnuance of actlng.

I was informed on behalf of the applicants that they were

unwilling to proceed to trlal wlthout legal assistance, and

this 1s understandable glven the complexlty of the matter.

!

3.

Since that, tlme Mr Cameron, who is the second

applicant and, I infer, a principal in the company whlch is

the first applicant, has been pursuing an application for

legal aid from the Australian Legal Aid Offlce. The

respondents flled on 19 June 1985 a Notice of Motlon for

dismissal of the amended Statement of Claim and for leave to

discontinue the Cross-claim. The basis for that application

was the failure of the appllcants to prosecute the matter,

I have granted to Mr Cameron a number of adjournments

because he had not received a final answer from the Australian

Legal Aid Office, but it appears from a letter dated today

which he has handed to me that the Director of that Office has

refused his application for legal aid.

The wrlter of the letter, Mr Pitzgerald of the

Australian Legal Aid Office, goes on to suggest the

possibility that legal aid might be granted pursuant to s.170

of the Trade Practices Act 1974 through the Community Affairs

Division of the Attorney-Gneral's Department. The suggestion

is that submissions should be put to him for consideration.

Whilst this suggestlon may be worth followlng up by Mr

Cameron, there is no guarantee that legal aid wlll be granted

or that Mr Cameron wlthin any reasonable perlod will be in	a
posltion to proceed wlth the hearing of the matter.

I

4 .

I think that it would be an incorrect course to fix a

hearing date in the present uncertaln positlon. That would

impose expense upon the respondents, whlch may turn out to be

wasted, and it is undeslrable for court time to be committed

for a case which is in doubt as to proceeding.

I think that I have to take the view that because of

Mr Cameron's financial position and his inability to obtain

legal aid, he is slmply not in a position to proceed with this

action wlthin a reasonable time, and I should accede to the

submission that the Application should be dlsmissed for want

of prosecution. This, of course, will be without prejudice to

the applicants' rights to bring a fresh application If and

when they are able to do so.

Accordingly, I order that the proceeding constituted

by the Application be dismissed for want of prosecution; such

dismissal to be without prejudice to any rights of the

applicants to bring fresh proceedings or to claim the same

rellef in fresh proceedings.

I grant leave to the respondents to discontlnue the

Cross-clalm. I order the applicants to pay the respondents'

costs of the Application and the Cross-claim but such order 1 s

not to affect the order made by me on 19 December 1984 in

relation to the motion for a stay on that day. The order

includes the costs of thls motion, lncluding the costs of all

I

5.

attendances on this motion. There will be no order as to the

costs of the Notice of Motion filed on 13 March 1985.

I certify that thls and the four (4)

preceding pages are a true copy of

the Reasons for Judgment herein	of
his Honour Mr. Justice Wilcox.

/ /

J

Associate: i y b - n L - ~ - A h’= ’ y - l?iT;L.

Appearance for the applicants: Mr D Cameron in person

Solicitors for the appllcants: Nil

Counsel for the respondents: Mr M Q’Brien

Solicitors for the respondents: Messrs J R Tesoriero, Kwan

& Company

Datets) h aring: of 18 July 1985

I