D'Anglers Paradise Pty Ltd v MMI General Insurance Ltd
[2000] FCA 1300
•18 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
D’Anglers Paradise Pty Ltd v MMI General Insurance Ltd [2000] FCA 1300
PRACTICE AND PROCEDURE - Application to have appeal stood over generally - consideration of relevant matters for an adjournment.
D’ANGLERS PARADISE PTY LTD v MMI GENERAL INSURANCE LIMITED
QG31 OF 2000COOPER, KIEFEL AND SUNDBERG JJ
BRISBANE
18 AUGUST 2000
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG31 OF 2000
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN:
D'ANGLERS PARADISE PTY LTD
(ACN 064 264 464)
APPLICANTAND:
MMI GENERAL INSURANCE LIMITED
(ACN 000 122 850)
RESPONDENTJUDGES:
COOPER, KIEFEL AND SUNDBERG JJ
DATE OF ORDER:
18 AUGUST 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The notice of motion filed 15 August 2000 be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the motion, to be taxed if not agreed.
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
QG31 OF 2000
ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
BETWEEN:
D'ANGLERS PARADISE PTY LTD
(ACN 064 264 464)
APPLICANTAND:
MMI GENERAL INSURANCE LIMITED
(ACN 000 122 850)
RESPONDENT
JUDGES:
COOPER, KIEFEL AND SUNDBERG JJ
DATE:
18 AUGUST 2000
PLACE:
BRISBANE
EX TEMPORE REASONS FOR JUDGMENT
THE COURT
This is an application to stand over an appeal from a judgment of Dowsett J dismissing the applicant’s principal proceedings.
The basis upon which the application is made is that the order was made in the absence of a party, and that the applicant wishes to apply to a single judge to vacate the orders made by his Honour on 4 April 2000.
It was submitted that his Honour ought to have adjourned the matter on 4 April 2000 to enable the applicant to show cause why the matter should not be struck out for want of prosecution and to enable the applicant’s managing director and its principal witness, Mr Loiero, to appear and explain his non-attendance on the trial of the matter.
The application is misconceived.
The matter was listed for trial before his Honour on 3 April 2000. On that occasion the applicant was represented by counsel and instructing solicitor. The instructions then held by the applicant’s legal representatives were to apply for an adjournment of the trial. They were concerned with the mental capacity of Mr Loiero to give such instructions and to instruct them in respect of the trial.
On 2 April 2000 Mr Loiero executed an affidavit containing his instructions to his legal representatives and seeking an adjournment on the basis that medication he was taking for a chronic mycoplasma infection was causing “brain fog, poor memory and lack of concentration”. He also expressed concern that the hearing time for the trial had been reduced and he sought a longer trial period be provided at an adjourned hearing. He attached to the affidavit medical certificates.
Neither Mr Loiero nor the medical practitioners were available to be cross-examined on the material.
On 2 April 2000 Mr Loiero, on the applicant’s letterhead, also wrote a letter to the applicant’s solicitor’s which read :
“Further to our most recent telephone conversation and to the circumstances detailed in my affidavit. As a result of my present condition and the circumstance details [sic] in my affidavit sworn 2nd April 2000. I am of the view that under no circumstances should you proceed in my absence on Monday. In saying this, if you are compelled to commence in my absence then you should seek leave and withdraw from representing us.
I apologise for any inconvenience that this may course [sic] you.”
The basis of the adjournment sought by the applicant’s legal advisers was their concern as to the competency of Mr Loiero as the responsible officer of the applicant to give instructions. The basis of the incapacity was not any effect induced by medication, but a previous head injury which involved some brain damage. There was no evidence before his Honour to support the contention that Mr Loiero was medically incapable of giving proper instructions or of giving evidence.
In the result, his Honour adjourned the trial until 4 April 2000 to enable evidence to be obtained. Counsel for the respondent, who objected to the adjournment, made it clear that if no adjournment was forthcoming and no step was taken by the applicant to proceed with the trial, the respondent would seek an order dismissing the action. Counsel also advised that the wished to cross-examine Mr Loiero on his affidavit and also cross-examine any medical practitioner intended to be relied upon in support of the application for adjournment. The medical reports attached to the affidavit of Mr Loiero were not relied upon by the applicant in support of the application for an adjournment to 4 April 2000 because the doctors could not be produced for cross-examination. Evidence was given by Mr Hocking, the applicant’s solicitor, of his observations and recent dealings with Mr Loiero. The matter was adjourned over to 4 April 2000.
On 4 April 2000 the applicant renewed its application for an adjournment and called evidence from Dr Friend, a psychiatrist. It did not read the affidavit of Mr Loiero as he was not available for cross-examination and the application was not based upon any effect of medication on Mr Loiero’s mental faculties.
When the application for an adjournment was refused, the applicant who was before the Court, offered no evidence when called on by the trial judge. In those circumstances, on the application of the respondent for judgment, his Honour dismissed the action with costs.
The applicant was before the Court on 4 April 2000. It sought to have the matter adjourned and failed. It was on notice that the respondent would seek judgment if the applicant failed to go to evidence when called on to proceed. The applicant, by Mr Loiero, made a conscious decision not to go to evidence if it could not secure an adjournment, and instructed its legal representatives accordingly. Those representatives acted in accordance with those instructions.
The decision to refuse an adjournment was not made in the absence of the applicant. It was made after a contested hearing. It is not capable of being revoked by a single judge of the Court.
Similarly, the judgment of Dowsett J dismissing the action with costs is not an order made in the absence of the applicant. It is a judgment entered on the trial of the action in consequence of the applicant failing to tender any evidence in support of its claim. It is not an order which is capable of revocation by a single judge of the Court and it is the subject of the substantive appeal.
No legitimate purpose can be served in standing over the substantive appeal. The application is in consequence, dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment herein of the Honourable Justices Cooper, Kiefel and Sundberg.
Associate:
Dated: 18 August 2000
Solicitor for the Applicant:
Dennis & Company
Counsel for the Respondent:
G A Thompson SC with D Clothier
Solicitor for the Respondent:
Deacons Graham & James
Date of Hearing:
18 August 2000
Date of Judgment:
18 August 2000
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