Deputy Commissioner of Taxation v England, Richard Anthony Fountayne (As liquidator of UB Minerals Inc (Nevada))

[1998] FCA 1161

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 3130 of 1996

BETWEEN:	DEPUTY COMMISSIONER OF TAXATION APPLICANT
AND:	RICHARD ANTHONY FOUNTAYNE ENGLAND (AS LIQUIDATOR OF UB MINERALS INC (NEVADA)) RESPONDENT
JUDGE:	MANSFIELD J
DATE:	20 AUGUST 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:        This is an oral application by the applicant to have the hearing of this matter take place on 25 and 26 August 1998.

It is necessary to note the background to the application.  The hearing of an application by the applicant for summary judgment under O 20 r 1 of the Federal Court Rules commenced on 14 November 1997 and then adjourned to a date to be fixed.  There has been difficulty arranging a date convenient to the parties and the Court to resume that hearing.  It is to be resumed only now on 25 and 26 August 1998, a date fixed some considerable time ago.  At directions hearings on 23 June 1998 and again on 7 August 1998 I raised with the parties whether, in view of the delay in having that application resolved, it would be more appropriate to allow the time set aside for the further hearing of that application to be converted into the trial of the action.  On the first occasion I raised that matter I was told by each of the parties, through their counsel, that that was not practicable.  Following me raising that matter again on 7 August 1998, the applicant has pursued that prospect and now applies orally for that to occur.  That application is resisted by the respondent.  I have heard argument today on that issue.

I do not intend to direct that the hearing of the matter proceed or commence on 25 August 1998.  I give but brief reasons for that decision.  First, however, I make it plain that the decision is not based upon the need to provide to the respondent the opportunity to complete such investigations as he may wish to continue to conduct in relation to his administration as liquidator of UB Minerals (Nevada) Inc.  There has been an extensive time since he was first appointed liquidator, and although the evidence before me indicates that there have been a number of difficulties which he has had to confront in completing his inquiries, those difficulties and the fact that he has not yet completed his inquiries is not of itself the reason why I decline to list the matter for hearing as sought.

My reasons are more related to the timing of the application and the capacity to achieve a just hearing in those circumstances.  It is only a short time now until the time proposed for the trial.  I have this morning made an order for further discovery to be made by the applicant to the respondent, albeit, I suspect, of a relatively limited number of documents.  I am told that that order will be complied with by midday tomorrow.  However, it is also fair to each party that he should have the opportunity of considering and assessing information to which he is entitled and the investigations which have been conducted by that party so as to prepare adequately for trial.  I am not satisfied, in the light of the affidavit evidence, that the time available between now and 25 August 1998, or indeed the time between the point at which the applicant indicated that it wished the hearing to proceed on 25 August 1998 as the trial and that date, is necessarily sufficient for the respondent to have prepared fully for the trial.

I do not see significant injustice to the applicant in declining the application.  The matter has not proceeded as expeditiously as some other matters in the Court.  No particular issue of urgency has been demonstrated in the material before me.  Such considerations sometimes dictate a trial on very short notice, albeit that the parties may struggle to be fully ready at that time.  They are not shown to be present here.

I am also moved by the fact that it is accepted that, within the two days set aside, the trial would not be completed in any event.  It would then have to be adjourned to a later date.  It is unclear how long the trial will take.  The respondent tells me it will take five days.  Whether or not that estimate is correct, bearing in mind the limited nature of the real issue between the parties and, I suspect, the limited nature of the evidence which ultimately might be adduced on that issue, remains to be seen.  Time will tell, and I cannot make any firm judgment about that now.  Whether or not that estimate is correct, there will need to be a break in the evidence, and it may involve, during that period, the need for there to be an application to recall a witness or witnesses for further cross-examination.  I am told on behalf of the respondent that there is already, if the matter proceeds to trial, a need to cross-examine further the two witnesses who presently have given evidence on the summary judgment application.  That may not necessarily be the case if the summary judgment application itself proceeds.  There will also be, as the applicant has indicated, a further witness or witnesses beyond those initially identified on the opening of the summary judgment application, and it is unclear the extent to which that evidence will involve cross-examination of any length.  If the trial were to take the place of the summary judgment application, the applicant wishes to reserve to himself the tendering of further affidavits which have not been presently relied upon in the summary judgment application, and the time consequences of that further evidence and cross-examination on it are presently unclear to me.

Accordingly, I think the fairer course is to indicate that I will list this matter for trial as soon as it can conveniently be listed, bearing in mind the Court’s commitments.  So far as it is practicable to do, consistent with the interests of justice, including the applicant’s legitimate desire to have the matter listed promptly, I will also have regard to the convenience of the parties and counsel.  I will indicate in a minute my proposed course of action in respect of that.  The trial will come on for hearing in either October or November of this year and I will set aside five days for the hearing.

I will leave it to the applicant in those circumstances to determine whether he wishes to proceed with his application for summary judgment on 25 and 26 August 1998.  If he does so and succeeds, then the trial will of course not take place.  If he does not do so, the trial will take place on a date which I will fix on 25 or 26 August 1998 because I propose to fix a further directions hearing for the matter at the same time as the balance of the summary judgment application is presently listed to be heard.  That will give the parties the opportunity to consider the dates available to the Court and to liaise with counsel and witnesses to ensure, so far as possible, that minimum inconvenience is caused to them.  I will not call upon counsel for the applicant to indicate presently whether the summary judgment application in those circumstances will or will not proceed next week.  That is entirely for the applicant, although I am sure that the applicant will, as a matter of courtesy, indicate to the respondent and to the Court promptly if the decision is made not to proceed with it in view of the fact that a hearing date will be fixed for the hearing generally within the time I have indicated.

I accordingly decline the application now made.  I will call on the directions hearing first on 25 August 1998.  If the summary judgment application is being pursued I will hear and determine it, and will also fix a hearing date sometime during those two days of hearing on the assumption that the summary judgment application will not succeed.  That will simply be an assumption and is not to be taken as any indication of my attitude with respect to the summary judgment application.  It will give the parties some indication of the hearing date in the future if it is required.  If the summary judgment application is not to be pursued, I will call on this matter for directions at 10.15 am on 25 August 1998 and then formally fix the hearing date, and give such further directions as are necessary to ensure the matter is ready for trial.

I will have my associate during the course of today indicate to the parties which of the first two weeks of November will be available as a possible hearing week.  The alternative will be 15, 16, and 17 October 1998 but if the matter proceeds beyond those three days, it will continue in the succeeding week until completion.  Ideally if the parties are agreed as to which of those two options they will adopt, they may simply inform me of that and I will make an order accordingly or give a direction accordingly, together with directions for the hearing.  I suggest that procedure because it may be, and I do not say it should be, but it may be helpful or relevant to the applicant to know in advance when the hearing will take place in deciding whether or not the applicant wishes to proceed next week with the summary judgment application.

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:         16 September 1998

Counsel for the Applicant:  Ms S Maharaj

Solicitors for the Applicant:  Australian Government Solicitor

Counsel for the Respondent:  Mr M Hoffman
  with him
  Mr J Karas

Solicitors for the Respondent:  Fisher Jeffries

Date of Hearing:  20 August 1998

Date of Decision:  20 August 1998