Carlton, Glenn Raymond v Pix Print Pty Ltd

[1997] FCA 1140

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 30  of   1997

BETWEEN:

GLENN RAYMOND CARLTON AND JENNIFER ANN CARLTON
FIRST APPLICANT

G & J CARLTON PTY LIMITED
(ACN 071 120 048)
SECOND APPLICANT

AND:

PIX PRINT PTY LIMITED
(ACN 062 004 657)
FIRST RESPONDENT

DAVID PIX
SECOND RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

13 OCTOBER 1997

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. The respondents’ amended defence and cross-claim be struck out pursuant to O 11 r 16 of the Federal Court Rules;

2. The respondents have leave to deliver a further amended defence and cross-claim, such amended defence and cross-claim to be filed and served within twenty-one days of today;

3. The respondents pay the applicants’ costs of and incidental to the motion filed 21 July 1997 to be taxed if not agreed;

4. The respondents pay the applicants’ costs, if any, thrown away as a consequence of the amended defence and cross-claim or of the delivery of the further amended defence and cross-claim to be taxed if not agreed.

THE COURT DIRECTS THAT:

1. Any defence to the cross-claim and any reply to the defence be filed within five weeks of today;

1. If there be any further discovery required, all parties file and serve a list of documents, or a further list of documents if necessary, within eight weeks of today;

2. Inspection take place within a further seven days;

3. The parties comply with the costs estimates directions in the usual terms as attached;

4. The matter be listed for directions at 9.30 am on 6 February 1998.

THE COURT FURTHER ORDERS THAT the costs of today’s directions be costs in the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 30 of 1997

BETWEEN:

GLENN RAYMOND CARLTON AND JENNIFER ANN CARLTON
FIRST APPLICANT

G & J CARLTON PTY LIMITED
(ACN 071 120 048)
SECOND APPLICANT

AND:

PIX PRINT PTY LIMITED
(ACN 062 004 657)
FIRST RESPONDENT

DAVID PIX
SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	13 OCTOBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

On 21 July 1997, a notice of motion was filed seeking that the first and second respondents’ defence and cross-claim be struck out pursuant to O 11 r 16 of the Federal Court Rules and that the first and second respondents pay the costs of and incidental to this application to be taxed.

On 8 October 1997 an amended defence and cross-claim was filed.  The cross-claim in that document is a fresh formulation of the cross-claim which the respondents wish to rely on in the principal proceedings.

In a sense , the filing of an amended defence and cross-claim amounted to an admission that, at least insofar as the cross-claim was concerned, and perhaps to a lesser extent in respect of the original defence, there were deficiencies that ought best be met by the filing of a further document.  It is accepted this morning on behalf of the respondents in the principal proceedings that there are difficulties remaining, albeit of a technical kind, in respect of the present defence and in respect of some aspects of the pleading in the cross-claim, particularly those directed to the pleading of the contract or contracts on which the respondents in the principal proceedings wish to rely.

It is accepted that the court ought to grant leave either to deliver a further amended defence and cross-claim or give leave to amend the amended defence and cross-claim filed 8 October 1997.  It seems to me that the former course is likely to be the better course, so that the matter can be pleaded in a way that is unconstrained by the structure of a present pleading which, it is accepted, has some difficulties with it.  In either event, it seems to me that the costs consequences would be the same.

The question then arises as to the costs of the motion.  The principal reason advanced by counsel for the respondents in the principal proceedings, Mr Burns, as to why the ordinary rule ought not be followed, is that the original application sought the striking out of the whole of the defence and the cross-claim and that, in effect, the difficulties in the respondents’ pleadings are of a lesser kind than would call for that rather draconian result.

While one might accept the correctness of that submission, it seems to me that, given the history of the matter and the accepted deficiencies in the most recent amended defence and cross-claim, I ought to follow the ordinary rule.  I will not, however, make any order pursuant to O 62 permitting the taxation of those costs prior to the determination of the principal proceedings.

It seems to me that the orders I should make are as follows, and I make those orders:

1. The respondents’ amended defence and cross-claim be struck out pursuant to O 11 r 16 of the Federal Court Rules;

2. The respondents have leave to deliver a further amended defence and cross-claim, such amended defence and cross-claim to be filed and served within twenty-one days of today;

3. The respondents pay the applicants’ costs of and incidental to the motion to be taxed if not agreed;

4. The respondents pay the applicants’ costs, if any, thrown away as a consequence of the amended defence and cross-claim or of the delivery of the further amended defence and cross-claim to be taxed if not agreed.

I direct that:

1. Any defence to the cross-claim and any reply to the defence be filed within five weeks of today;

2. If there be any further discovery required, all parties file and serve a list of documents, or a further list of documents if necessary, within eight weeks of today;

3. Inspection take place within a further seven days;

4. The parties comply with the costs estimates directions in the usual terms as attached;

5. The matter be listed for directions at 9.30 am on 6 February 1998.

I further order that the costs of today’s directions be costs in the proceedings.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate:

Dated:  13 October 1997

Counsel for the Applicant:	Mr M Eliadis
Solicitor for the Applicant:	Lynch & Co
Counsel for the Respondent:	Mr M Burns
Solicitor for the Respondent:	Gadens Ridgeway
Date of Hearing:	13 October 1997
Date of Judgment:	13 October 1997