Donkin, C.J. v AGC (Advances) Ltd

[1990] FCA 536

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JUDGMENT NO. ......,........ .. .I**& 536 7 ?L

IN THE FEDERAL COURT OF AUSTRALIA	)	I
QUEENSLAND DISTRICT REGISTRY	)	G107 of 1989
GENERAL DIVISION	)

BETWEEN :  COLIN JOHN DONKIN and
HEATHER KAY DONKIN

Applicants

AND :  AGC (ADVANCES) LIMITED

I	Respondent
!

AND:  AGC (ADVANCES) LIMITED

Cross-Claimant

!	0 2 OCT 1990	AND :	COLIN JOHN DONKIN and
I
HEATHER KAY DONKIN

Cross-Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	28 SEPTEMBER 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The costs of and incidental to the Notice of Motion filed on 18 September and dismissed on 26 September 1990 be the respondent's costs in the proceedings.

I	NOTE:	Settlement and entry of orders is dealt with in
I
Order 36 of the Federal Court Rules.

I
I

IN THE FEDERAL COURT OF AUSTRALIA	1
OUEENSLAND DISTRICT REGISTRY	1 G107 of 1989
GENERAL DIVISION	1

BETWEEN: COLIN JOHN DONKIN and

HEATHER KAY DONKIN

Applicants

AND: AGC (ADVANCES) LIMITED

Respondent

AND: AGC (ADVANCES) LIMITED

Cross-Claimant

AND: COLIN JOHN DONKIN and

HEATHER KAY DONKIN

Cross-Respondents

CORAM: PINCUS J.

PLACE: BRISBANE

m: 28 SEPTEMBER 1990

REASONS FOR JUDGMENT

A Notice of Motion was filed on 18 September,
seeking an order that the respondent's pleadings be struck out

and that judgment be entered in favour of the applicants. On

question of costs reserved. These reasons relate to costs	26 September, that Notice of Motion was dismissed and the
only.

. Somers, for the applicants, suggested that I

should take into account, against the respondent, the whole history of the respondent's conduct. However, the principal matter to be considered is the sequence of events leading up

2   l

to the filing on 18 September and service on 21 September of
the Notice of Motion which has been dismissed.

On Thursday, 13 September, counsel for the applicants complained of the quality of certain copies of documents in the possession of the respondent which had been provided by the respondent's solicitors and the respondent's counsel gave an assurance that proper copies would be provided. It was arranged that a list of the documents said not to have been properly copied would be provided and that Mr. Rankin (a partner in the firm representing the respondent) would courier the documents to Rockhampton (where the applicants' solicitors practise) the next day. On the morning of the next day, the applicants' solicitors sent a fax requesting further copies but that was addressed to Mr. Wilson, another partner in the firm representing the respondent, not to Mr. Rankin. Due to a mistake in the office of that fin, the fax was apparently not drawn to Mr. Rankin's attention; Mr. Wilson was away in Sydney. All that day,

but they did not.	Friday, 14 September, the applicants' solicitor, Mr. Murphy, and Mr. Donkin, waited for the promised documents to arrive
A weekend passed. One would have expected the applicants' solicitor to contact the respondent's solicitors urgently, by telephone or otherwise, but he did not. Instead, he wrote a letter on Monday, 17 September, complaining of what had happened and threatening the filing of a Notice of Motion. That letter was not received by the respondent's solicitors until 19 September; the Notice of Motion was, as I have said, filed on 18 September. Before the Notice of Motion was served (on 21 September) the respondent's solicitors had informed the applicants' solicitors by fax of what had gone wrong and told them that the documents were being copied: that was duly done.
There has been fault on both sides. There was a lack of communication between Messrs Rankin and Wilson, and the fax of 14 September addressed to Mr. Wilson should surely have found its way to Mr. Rankin soon enough; no doubt the respondent's solicitors have a system such that when one of two partners involved in a matter is away, correspondence relating to that matter goes to the partner who is in the office. But it seems clear to me that the Notice of Motion should not have been proceeded with. By the time it was served, the complaint which had prompted it, namely the
non-delivery of clear copies, had become wholly or largely
week after the Notice of Motion was filed, a letter was academic. It may be for that reason that, on 25 September, a
written by the applicants' solicitors raising further
complaints.
I would make two further comments. One is that it seems to me desirable that the solicitors involved in this matter communicate with the other side more openly and freely; such communications cost the client money, but not so much
money as is involved in the hearing of a futile Notice of Motion. Further, as I mentioned during the hearing, I would prefer solicitors who intend to provide copies of material other than in accordance with the ordinary practice to raise the matter at a directions hearing before taking that course. In particular, I think it is wrong to add to copies furnished to the opposing side stamped material not forming part of the documents copied, without any order permitting that. The respondent's solicitors' having done so may have been seen by their opponents as rather high-handed.
The costs of and incidental to the Notice of Motion filed on 18 September and dismissed on 26 September will be the respondent's costs in the proceedings.

I certify that this and the

three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus

Associate

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