Commercial Dynamics Pty Ltd v Ad-Mag (SA) Pty Ltd

[1999] FCA 1038

FEDERAL COURT OF AUSTRALIA

Commercial Dynamics Pty Ltd v Ad-Mag (SA) Pty Ltd [1999] FCA 1038

COMMERCIAL DYNAMICS PTY LTD (ACN 001 821 156) v AD-MAG (SA) PTY LTD (ACN 079 592 046) and AD-MAG NO 3 PTY LTD (ACN 082 868 620)

S 31 OF 1999

MANSFIELD J
ADELAIDE
12 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 31 OF 1999

BETWEEN:	COMMERCIAL DYNAMICS PTY LTD (ACN 001 821 156) Applicant
AND:	AD-MAG (SA) PTY LTD (ACN 079 592 046) and AD-MAG NO 3 PTY LTD (ACN 082 868 620) Respondents

JUDGE:	MANSFIELD J
DATE:	12 JULY 1999
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:

1. This matter was specially listed for hearing at the urging of both the applicant and the first and second respondents.  More recently, it has appeared that senior counsel for the first and second respondents may not be available for the first two days of the hearing time set aside.  The court already has commitments which will occupy part of the second hearing day, 20 July, and part of the third hearing day, 21 July.

2. The parties are unable to give me any assurance at present that the matter will be completed within the balance of the hearing dates set aside if the application were granted.  There is therefore in my view a significant risk that the matter would have to be stood over on 23 July 1999 for further hearing if the application were granted.  The present availability of the Court to complete the hearing of this matter is not clear, but at present it would not be before about the middle of September 1999, and there are other matters pressing for hearing during that time.  Those other matters may need to be deferred if the application is granted.

3. I am also assured by senior counsel for the applicant that the standing over of that matter to about that time for further hearing would cause embarrassment to senior counsel for the applicant.  The application therefore seems to me to boil down to which of the senior counsel should be accommodated, but in circumstances where the further hearing of the matter would be delayed for a considerable period of time and without any guarantee at present that the Court would be available to hear it to completion in a timely way.

4. In those circumstances, it seems to me appropriate simply to decline the application where the first and second respondents have retained competent senior and junior counsel to conduct the matter.  I do not see a great disadvantage to the first and second respondents in being put in that position, where they have capable junior counsel and where senior counsel will be available for the bulk of the hearing time set aside in any event.  I therefore decline to make the order sought in par 3 of the notice of motion.

5. I reserve liberty to those respondents to renew the application on 15 July, but I indicate that I would be unlikely to be sympathetic to the application, without an assurance being given by solicitors and counsel for the first and second respondents that if the matter were to commence on 21 July 1999 it would be completed within the time available - that is, by 23 July 1999 – in so far as it concerns the first and second respondents.  Quite properly, Mr Gray has not proffered that assurance at the present time and it would be inappropriate for him to have done so without the filing of statements by those respondents and their discovery.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             30 July 1999

Counsel for the Applicant:	Mr R J Whitington QC with him Mr M E Hoile and Mr N G Rochow
Solicitors for the Applicant:	Piper Alderman
Counsel for the Respondents:	Mr C Gray
Solicitors for the Respondents:	Johnson Winter & Slattery
Date of Hearing:	12 July 1999
Date of Decision:	12 July 1999