College Company Pty Ltd (in liq) v Walsh, Pamela

[1998] FCA 37

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 19 of 1996

BETWEEN:

COLLEGE COMPANY PTY LTD
ACN 061 835 505 (IN LIQUIDATION)
APPLICANT

AND:

PAMELA WALSH
FIRST RESPONDENT

PAMELA WALSH EDUCATIONAL CONSULTING
PTY LTD
ACN 007 577 134
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	2 FEBRUARY 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

This matter was first tentatively listed for hearing on 9 February 1998 by order made on 23 September 1997, and the subsequent directions and efforts of the parties have been towards preparing the matter for hearing on that occasion.  Ultimately, on a directions hearing of 6 November 1997 I fixed that hearing date and subsequently, by directions given on 27 November 1997, gave directions to ensure that the matter was ready for trial, including a timetable for the exchange of written statements of evidence.  At the time I fixed the hearing date I had been told that a Mr Burrows, a witness for the applicant, was likely to be in New Zealand during some or all of the time fixed for the hearing.

It is apparent from the history of this matter that it has not proceeded as quickly as it may have and, to a large measure, the delays which have occurred have been the responsibility of the applicant.  In fact, there have previously been two notices of motion issued by the respondents dated 3 February 1997 and 1 April 1997 to dismiss the proceedings for failure on the part of the applicant to comply with directions of the Court.

As the respondents were anxious to set a hearing date and no particular material was presented to me to indicate that Mr Burrows could not return to Australia for the purposes of giving evidence during the hearing, I fixed that hearing date in the light of the respondents’ legitimate desire to have the matter listed for hearing as soon as practicable and in the light of that difficulty but in the absence of evidence that it was an insuperable difficulty for the applicant.

In fact, the matter was adjourned to enable the question of whether there was an insuperable difficulty in bringing Mr Burrows back to Adelaide confronting the applicant to be explored, and although I am now speaking only from recollection and not by reference to the transcript, my recollection is that counsel then appearing for the applicant acceded to the fixing of the hearing date knowing that Mr Burrows was then likely to be in New Zealand.

When the matter was called on this morning for further directions, the applicant has again sought an adjournment of the hearing date because of Mr Burrows’ absence in New Zealand during the hearing.  No further affidavit evidence has been adduced.  The respondents oppose the application.  I am told, although it has not been proved by affidavit but I assume could be proved, that arrangements have been made by the respondents to bring a witness from the United States or Canada to give evidence and that those arrangements cannot be disengaged in time to save the cost of so doing.

In my view, the application for adjournment of the hearing in the circumstances outlined should be refused, and I refuse it.  It is difficult to see circumstances in which a further application for adjournment based on Mr Burrows’ presence in New Zealand could succeed, but I do not foreclose that right of the applicant to further pursue an application if so advised, on appropriate material and with appropriate notice.

The respondents are now unrepresented.  Ms Walsh appears for herself and, subject to an appropriate resolution of the second respondent, will seek to appear for the second respondent.  She sought the dismissal of the proceedings today for the applicant’s failure to comply with earlier directions, including directions as to discovery by the applicant and directions as to the filing of statements.  I am not prepared to rule on that application today because in some respects it may be contested by the applicant as to the grounds of non-compliance asserted by Ms Walsh.  No notice of the application or of the grounds was given.

Certainly some of the history of the matter which I have recorded, including the fact that orders were not ultimately pursued on earlier notices of motion except as to costs because of the applicant’s belated compliance with earlier directions, tends to suggest that there may be a dispute as to whether full discovery has in fact been given by the applicant, or at least discovery to the satisfaction of the respondents through their then solicitors.

I am not satisfied that the failure of the applicant to comply with the directions as to the filing of statements, which is still ongoing, will prejudice the fair trial of the matter, particularly as I propose to vary the order that the respondents file responding statements and to lift that order because it now seems that not all of the applicant’s statements are yet filed.  It may be that there will be some prejudice which cannot be accommodated by an appropriate order, but at present that is not shown to me to be the case.

I propose to simply adjourn that oral application to a date to be fixed but to give the respondents liberty to call it on again at the commencement of the hearing, provided they comply with the directions which I am about to give in respect of it.  I do that for the reasons I have outlined but also because the application was made without notice and only on oral assertions made by Ms Walsh on behalf of the respondents rather than by affidavit.

The directions I give are as follows:

1. Application by applicant for adjournment refused.

1. Application by respondents to dismiss action adjourned to a date to be fixed, with liberty to apply to renew application at commencement of hearing.  If application is to be renewed, direct respondents to:

(a)notify applicant’s solicitors in writing of proposed application by 4.00 pm on 4 February 1998;

(b)file and serve affidavit setting out in full grounds of application by 4.00 pm, 4 February 1998, including detail of the alleged defaults by the applicant and of the nature and extent of the prejudice to the respondents by reason of it.

If application is so renewed and material served in accordance with those directions, I direct the applicant to file and serve any responding affidavits by 10.00 am on 9 February 1998.

1. I vary the directions given on 27 November 1997 by relieving the respondents of the obligation to file and serve witness statements prior to the hearing.

1. Costs of today costs in the cause.

1. Liberty to apply.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:   

Counsel for the Applicant:	Mr G Stevens
Solicitor for the Applicant:	M J Murray & Associates
First Respondent appears in person (Ms P Walsh)
Second Respondent appears by a director (Ms P Walsh)
Date of Hearing:	2 February 1998
Date of Decision:	2 February 1998