Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd
[2003] FCA 1180
•13 AUGUST 2003
FEDERAL COURT OF AUSTRALIA
Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2003] FCA 1180
CHECKED-OUT PTY LTD v EAGLE EYE INSPECTIONS PTY LTD & ORS
N169 OF 1999
EMMETT J
13 AUGUST 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N169 OF 1999
BETWEEN:
CHECKED-OUT PTY LTD (ACN 071 965 798)
APPLICANT
AND:
EAGLE EYE INSPECTIONS PTY LTD (ACN 084 722 234)
FIRST RESPONDENT
JOSEPH WILLIAMS
SECOND RESPONDENT
WAYNE THOMAS COOK
THIRD RESPONDENT
TIMOTHY BOLLINS
FOURTH RESPONDENT
DEBORAH JEAN WILLIAMS
FIFTH RESPONDENT
PETER ADAMS trading as PETER ADAMS, SOLICITORS & ATTORNEYS
SIXTH RESPONDENT
KATARINA MUC trading as G H HEALEY & CO BLACKTOWN and BRUCE McCANN trading as B E McCANN & CO, SOLICITORS
SEVENTH RESPONDENT
MARK KELADA trading as MARK KELADA SOLICITORS
EIGHTH RESPONDENT
MICHAEL QUINN trading as QUINNS SOLICITORS
NINTH RESPONDENT
JOHN MICHAEL NOYCE and GREGORY LAURENCE MARTIN trading as NOYCE LAWYERS
TENTH RESPONDENT
HENRY GRECH trading as GRECH PARTNERS SOLICITORS
ELEVENTH RESPONDENT
GREGORY PETER GUY trading as GUY & ASSOCIATES SOLICITORS
TWELFTH RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
13 AUGUST 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.the applicant file an affidavit in support of any application for a certificate under O 80 r 4 of the Federal Court Rules as to the means of the applicant and to the capacity of the applicant to obtain legal assistance outside the scheme referred to in O 80;
2.leave be granted to the applicant to file a notice of motion seeking orders varying the regime for security of costs, such notice of motion to be made returnable before Emmett J on Friday, 15 August 2003 at 2.15 pm;
3.the time for service of any notice of motion filed pursuant to Order 2 and any affidavits in support of such motion be abridged to 1.00 pm on Thursday, 14 August 2003;
4.the respondents serve, no later than 5.00 pm on Thursday, 14 August 2003, any affidavits on which they intend to rely in opposition to any notice of motion filed pursuant to Order 2;
5.leave be granted to the respondents to file in Court the defences to the Fifth Further Amended Statement of Claim;
6.the matter be fixed provisionally for hearing of all issues other than issues concerning relief on 13 October 2003 at 10.15 am for five (5) days;
7.the matter be stood over for further directions on Friday, 15 August 2003 at 2.15 pm.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 169 OF 1999
BETWEEN:
CHECKED-OUT PTY LTD (ACN 071 965 798)
APPLICANT
AND:
EAGLE EYE INSPECTIONS PTY LTD (ACN 084 722 234)
FIRST RESPONDENT
JOSEPH WILLIAMS
SECOND RESPONDENT
WAYNE THOMAS COOK
THIRD RESPONDENT
TIMOTHY BOLLINS
FOURTH RESPONDENT
DEBORAH JEAN WILLIAMS
FIFTH RESPONDENT
PETER ADAMS trading as PETER ADAMS, SOLICITORS & ATTORNEYS
SIXTH RESPONDENT
KATARINA MUC trading as G H HEALEY & CO BLACKTOWN and BRUCE McCANN trading as B E McCANN & CO, SOLICITORS
SEVENTH RESPONDENT
MARK KELADA trading as MARK KELADA SOLICITORS
EIGHTH RESPONDENT
MICHAEL QUINN trading as QUINNS SOLICITORS
NINTH RESPONDENT
JOHN MICHAEL NOYCE and GREGORY LAURENCE MARTIN trading as NOYCE LAWYERS
TENTH RESPONDENT
HENRY GRECH trading as GRECH PARTNERS SOLICITORS
ELEVENTH RESPONDENT
GREGORY PETER GUY trading as GUY & ASSOCIATES SOLICITORS
TWELFTH RESPONDENTJUDGE:
EMMETT J
DATE:
13 AUGUST 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 15 May 2003, I directed the applicant to serve on the respondents, no later than 23 May 2003, drafts of any proposed amended statement of claim and any proposed amended application that the applicant seeks to file. I also directed each of the respondents to notify the applicant and all other respondents, no later than 30 May 2003, as to whether there was any objection to the filing of the amended pleadings, and, if so, what objections. I then directed that if no objection was notified, the applicant was to have leave to file and serve, no later than 6 June 2003, amended pleadings in the form so served.
The respondents were then directed to file and serve, no later than 20 June 2003, defences to any such amended pleadings. I also directed the respondents to file and serve, no later than 25 July 2003, an outline of all of the evidence on which they intended to rely in relation to the allegations made in the proposed amended statement of claim of the subsistence of copyright. The reason for my directing an outline of evidence as to the subsistence of copyright was to enable me to determine whether it was appropriate to proceed with a hearing on issues other than assessment of damages and relief generally. I then stood the matter over for directions on 7 August 2003.
There is some suggestion that, although the amended pleadings were filed and served on 6 June 2003, the proposed amended statement of claim and proposed amended application was not served on the respondents by 23 May 2003. No complaint has been advanced today as a result of the failure to receive the proposed amended pleadings if, in fact, there was a failure to serve them. I have not inquired into the matter and I am prepared to proceed on the basis that there was compliance with the directions on the part of the applicant.
For reasons which are totally inexcusable, none of the respondents complied with the directions that I gave. Each has advanced excuses, some of which are faintly more acceptable than others. I find it disconcerting that four different groups of respondents failed, for different reasons, to comply with directions. Some of the reasons advanced are inadvertence; in one case, indisposition of counsel. The result was that, when the matter came before me on 7 August 2003, there was nothing that could be usefully done.
On 7 August 2003, I directed the respondents to file affidavits as to why the time for compliance with the directions of 15 May 2003 should be extended. Specifically, I was concerned with extending the time for filing defences. The extension of time for filing defences is opposed by the applicant. In support of that opposition, the solicitor for the applicant furnished the Court and counsel for the respondents with a chronology setting out facts alleged and steps that have been taken in the conduct of the proceedings to date. The chronology was not verified; some of it is material that can be deduced from the Court file, parts of it are allegations that are unsupported.
The chronology does indicate the unfortunate progress of this proceeding to date. I do not propose to express a view as to where the fault for that unsatisfactory progress lies. I have observed in the past, however, that difficulties with the way in which the case has been pleaded have caused a slowing of the progress of the proceeding. Questions concerning security for costs have also delayed the progress of the proceeding. It is also fair to comment that the respondents have been assiduous in finding fault with the pleading. That is not necessarily a criticism but it has resulted in the delay in progressing the proceeding.
The respondents have at all times indicated that they dispute much of the claims made by the applicant. In particular, they have indicated that they do not accept that copyright subsists in the applicant. One concession that was made was that, if copyright subsisted in Mr Hardcastle, there would be no dispute that the applicant had acquired that copyright. It has, however, always been made clear that the claim to copyright by the applicant would be disputed.
I have not, at this stage, examined the proposed defences at all. It would not be appropriate for leave to be given to file defences that involve withdrawal of admissions that have previously been made. However, the pleading has been significantly recast. I consider that the administration of justice would not be served by denying the respondents the opportunity of filing defences so long as they do not put in issue matters that have previously been admitted. Therefore, I propose to give the respondents leave to file in Court defences which have now been filed. However, that leave is given without prejudice to the entitlement of the applicant, if it wishes to make such an assertion, to contend that admissions have been withdrawn.
I have indicated to the parties that I would be prepared to embark on a hearing of the proceeding on 13 October 2003 on all issues other than questions of relief. Whether the applicant is able to proceed on that day may depend upon the outcome of a foreshadowed application to vary the regime for security that is presently in place and an application for a referral under O 80, which deals with Court appointed referral for legal assistance.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 31 October 2003
Solicitor for the Applicant: P D Solomon Counsel for the First to Fifth Respondents: J S Drummond Solicitor for the First to Fifth Respondents: Bateman Battersby Counsel for the Sixth, Eighth to Eleventh Respondents: M W Young Solicitor for the Sixth, Eighth to Eleventh Respondents: Noyce Lawyers Solicitor for the Seventh Respondent: David Somerfield & Co Counsel for the Twelfth Respondent: B Morris Solicitor for the Twelfth Respondent: R E Barros & Co Date of Hearing: 13 August 2003 Date of Judgment: 13 August 2003
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