Chalk v Commissioner for Superannuation

[1994] FCA 1063

1.N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 309 of 1994

GENERAL DIVISION )

BETWEEN :

BRONWYN AN'N SEARLE

Applicant

AND :

PETER KEAYES

First Respondent

RICHARD KEAYES

Second Respondent

BRISALEBE AG LIMITED

(ACN 060 401 827)

Third Respondent

BRISALEBE AG

Fourth Respondent

WSB (No 15) PTY LIMITED

(ACN 055 949 016)

Fifth Respondent

WSB (No 17) PTY LIMITED

(ACN 058 901 170)

Sixth Respondent

CORAM :	TAMBERLIN J
PLACE :	SYDNEY
DATED :	21 December 1994

31 JAN 1995

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

REASONS FOR JUDGMENT REQISTRV

This morning an application has been made by the third respondent, Brisalebe AG Limited (Brisalebe) for leave to file a defence and cross-claim. A notlce of appearance was also filed in court this morning on behalf of Brisalebe. Today is the tenth day of the hearlng and is the last day for the hearing of evidence in this matter.

- 2 -

The application is opposed by Mrs Bronwyn Searle, the applicant in the main proceedings, but not by the second respondent, Mr Peter Keayes. No evidence has been tendered in support of or in explanation of the application. It has been indicated by counsel that Brisalebe does not propose to call any evidence, tender any documents or cross-examine any witnesses but wishes merely to address the court in support of the defence and cross-claim and the orders sought in the cross-claim.

The defence sought to be filed basically does not admit matters alleged in the statement of claim and claims that Brisalebe is entitled to 23 per cent of the capital of Brisalebe AG (AG) , a Swiss corporation. The statement of claim alleges that such shareholding was secured by Brisalebe -. as the result of a breach by Peter Keayes of fiduciary and other obligations. By the cross-claim Brisalebe seeks a declaration that it owns 23 per cent of the capital of AG and that AG exclusively holds the absolute interest in certain a .

specif	;ed patent applications.
. .

The amended application is dated 3 June 1994 and the statement of claim was filed on 20 June 1994. The proceedings have been the subject of directions hearings and Brisalebe has neither entered an appearance nor filed any pleadings nor put on any evidence in the proceedings prior to this application. Senior counsel for Mrs Searle indicates to me that his client's case has been conducted on the basis of the lssues raised in the

- 3 -

pleadings to date. He has referred me to the judgment of Rodgers J in the case of Coopers Brewery Limlted v Panfida Foods Limited (1992) 26 NSWLR 738.

He submits that Brisalebe has had a reasonable opportunity to conduct its case. He says that there would be patent prejudice to his client if new issues are sought to be raised at this late stage and indicates that his case has effectively been closed and that his case has been run on the assumption that certain matters were not in lssue on behalf of Brisalebe.

I can see great force in the submissions made on behalf of Mrs Searle in this matter. I consider that the cross-claim does raise some further lssues and particularly as to the rights of

AG as to the ownership of the patents and the circumstances in

which the rights in the patents were acqulred or transferred to it. These are matters on whlch Mrs Searle may have wanted to provide further evidence.

Furthermore, in relation to the proposed defence, matters which were previously not put in issue between Brisalebe and Mrs Searle are now sought to be put in issue. In addition to questions of fairness as between the parties, there is the further important consideration alluded to in my earller judgment of 21 November 1994 in this matter as to the need for effective case management and court administration. The interests of other litigants must be considered and not only the interests of the parties to the particular proceeding.

- 4 -

Where a party, being fully aware of the proceedings, has elected not to take an active part then it should not be permitted to raise further issues at the last minute unless there are exceptional circumstances.

In relation to this application there is simply no explanation as to why the application is made at this late stage nor is any evidence proffered to ground an application or demonstrate any exceptional circumstances. Having regard to what I have said above, I dismiss the application by Brisalebe to flle the defence and cross-claim. I make no order as to the costs of the application. However, I am prepared to allow Brisalebe to make written submissions on the evidence in thls matter in so far as the evidence affects its position and to address orally on those submissions but on the strict basis that it will bear its own costs of dolng so, whatever the outcome of these proceedings.

I c e r t i f y that t h i s and

the preceding three ( 3 )

pages are a true copy of the

Reasons f o r Judgment herein of

h i s Honour Just ice Tamberlin.

associate : h-\? -dLv

-2

Date : 21 December 1994

Counsel for Applicant :

Mr T K Tobln QC

Mr G M McGrath

Solicitors for Applicant :

Aitken & Magney

Counsel for First Respondent :

Mr J M Gorrick

Counsel for Third Respondent :

Mr G P George

Solicitors for Thlrd Respondent : Davld Trodden & Associates

Date of Hearing :	21 December 1994
Date Judgment Delivered:	21 December 1994