Dorf Industries Pty Ltd v The Hon. Toose, P.B. CBE QC
[1995] FCA 80
•16 Feb 1995
CATCHWORDS
PRACTICE & PROCEDURE - application to adjourn motions seeking to enter judgment against applicant - payment of costs - revival of substantive application for relief - initial claim for declaration refused for discretionary reasons - potential for prejudice to individual respondents caused by prolonging litigation.
DORF INDUSTRIES PTY LTD v THE HON. P.B. TOOSE CBE QC & ORS.
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 16 FEBRUARY 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 405 OF 1994
)
GENERAL DIVISION )
BETWEEN: DORF INDUSTRIES PTY LTD
(ACN 004 394 923)
(Applicant)
AND:THE HONOURABLE PAUL B TOOSE CBE QC (who is sued on his own behalf and as representing the members of the Advertising Standards Council)
(First Respondent)
AND:AUSTRALIAN CONSOLIDATED PRESS LIMITED (which is sued on its own behalf and as representing the members of the Media Council of Australia)
(Second Respondent)
AND: NINE NETWORK AUSTRALIA LTD and GENERAL TELEVISION CORPORATION PTY LTD
(Third Respondents)
CORAM: RYAN J
PLACE:MELBOURNE
DATE16 FEBRUARY 1995
MINUTES OF ORDER
THE COURT ORDERS:
That the motions on notices, dated 21 December 1994 and 17 January 1995, be adjourned to a date to be fixed not before 20 March 1995;
That the applicants file and serve by 1 March 1995 any affidavit or affidavits on which they intend to rely in opposition to either of the motions referred to in paragraph 1 of this order, together with a notice of motion for any interlocutory relief or other directions which they seek in relation to the application herein;
That the respondents file and serve by 14 March 1995 any affidavit or affidavits on which either of them intends to rely in answer to any affidavit filed and served on behalf of the respondents pursuant to paragraph 2 of this order;
That the applicants pay the first and second respondents' costs of the interlocutory application referred to in the reasons for judgment of Ryan J of 9 December 1994 and their costs of this day, such costs to be taxed, in default of agreement, as between party and party, such taxation to occur before the taxation of any costs which may hereafter be ordered herein but without prejudice to the right of the respondents, or either of them, subsequently to seek an order for supplementary taxation and payment of those costs on an indemnity basis; and
That liberty be reserved to any party to apply to Ryan J on not less than 72 hours notice in writing to the other parties.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 405 OF 1994
)
GENERAL DIVISION )
BETWEEN: DORF INDUSTRIES PTY LTD
(ACN 004 394 923)
(Applicant)
AND:THE HONOURABLE PAUL B TOOSE CBE QC (who is sued on his own behalf and as representing the members of the Advertising Standards Council)
(First Respondent)
AND:AUSTRALIAN CONSOLIDATED PRESS LIMITED (which is sued on its own behalf and as representing the members of the Media Council of Australia)
(Second Respondent)
AND: NINE NETWORK AUSTRALIA LTD and GENERAL TELEVISION CORPORATION PTY LTD
(Third Respondents)
CORAM: RYAN J
PLACE:MELBOURNE
DATE:16 FEBRUARY 1995
REASONS FOR JUDGMENT
RYAN J: I am disposed, having reflected on this matter to the limited extent to which I have been able, to accede to the applicants' application for an adjournment of the two motions filed on behalf of the respondents which are presently before the court. I have been influenced to that course primarily by the consideration that in resisting those motions the applicants might reasonably seek on proper material to revive, or erect for the first time, a claim for relief in the substantive application other than the claim for a declaration which I refused for discretionary reasons on 30 November 1994.
I consider that the inability of the applicants to take that course today is, in the circumstances, largely of their own making - they having been on notice since early January this year that the respondents' motions were returnable today. I am not unmindful of the fact that a further adjournment of the matter will prolong the uncertainty of this litigation in the sense of a lack of resolution of it for the first respondents who are effectively individual members of an unincorporated body. However, I am not persuaded that the more fundamental uncertainty referred to in the affidavit of Mr Harcourt of 14 February 1995 and relied on by Mr Jolson QC for the first respondent, will be resolved by acceding to that respondent's motion either today or at some later date.
I also accept that some prejudice is occasioned to the respondents by the lack of resolution of the question of costs and by the costs which will be occasioned by the adjournment. However, that prejudice can be overcome by an order that the applicants pay the first and second respondents' costs of today and of the interlocutory application as to which I tentatively expressed the view in my reasons of 9 December 1994 that they should be paid by the applicants.
In addition, I have been influenced in taking the course which I have indicated by the consideration that, if fully argued, the motions before the court have no certainty of being concluded today and the court as presently constituted would be unable to afford them a resumed hearing for some very considerable time.
I certify that this and the preceding 2 pages are a true copy of the reasons for judgment of his Honour Justice Ryan.
ASSOCIATE:
DATE:
Counsel for the Applicant: Mr K Bell
Solicitors for the Applicant: Clayton Utz
Counsel for First Respondent: Mr H Jolson QC
Solicitors for First Respondent: Barker Gosling
Counsel for Second Respondent: Mr R W White
Solicitors for Second Respondent: Boyd House & Partners
Solicitors for Third Respondent: Arthur Robinson & Hedderwicks
Hearing Date: 16 February 1995
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