Elsehaly, S. v Mitchell, D.R

[1988] FCA 417

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD G160 Of 1987

DIVISION GENERAL )

BETWEEN:  SHAAB ELSEHALY and HASSANAT ELSEHALY

Applicants

AND:  DESMOND ROY MITCHELL

First Respondent

AND:  WAYNE MICHAEL McCRAE

Second Respondent

AND:  KENNETH NOEL PENFOLD

Third Respondent

AND :  OAK BRAND PTY LTD

Fourth Respondent

AND :  TAYLOR HOLDINGS PTY LTD

Flfth Respondent

MINUTES OF ORDER

PINCUS ORDER: MAKING JUDGE J.

DATE OF ORDER:	8 JULY 1988
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

on a date to be fixed by him on his being satisfied

it is ready;

1.    the foreshadowed counter-clalm mentioned on behalf of the first, thlrd, fourth and fifth respondents,

lf it be made, not be made In these proceedings,

but be the subject of a separate proceeding;

2 .	the parties exchange on 27 July 1988 copies of
statements of witnesses they propose to call at

trial;

3 .    the matter be set down for trial by the Registrar

4.    any party may apply to the Registrar for the matter to be mentioned further;

5.     the costs of today be costs in the proceedings.

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 ) QLD G160 Of 1987

DIVISION GENERAL 1

BETWEEN: SHAAB ELSEHALY and HASSANAT ELSEHALY

Applicants

AND:  DESNOND ROY MITCHELL

First Respondent

AND:  WAYNE MICHAEL MCCRAE

Second Respondent

AND:  RENNETH NOEL PENFOLD

Thlrd Respondent

AND: OAK BRAND PTY LTD

Fourth Respondent

AND:  TAYLOR HOLDINGS PTY LTD

Flfth Respondent

PINCUS J. 8 JULY 1988

EX TEMPORE REASONS FOR JUDGMENT

In this matter a dispute has arisen with respect to the

lnterlocutory steps to be taken. After some false starts, the proceedlngs got under way firmly in December last year, when a final version of the statement of claim was delivered. The

defences in their final versions came in in February and March and

discovery took place in April.

On 14 April, it was decided that the trial should take

place on a date to be fixed by the registrar and that the parties

should exchange copies of statements of witnesses on 30 June. Mr

Hensler and Mr Kilner, who appeared for the applicants and for the

first, third, fourth and fifth respondents respectively, both

concur in the proposition that on 14 April the parties for whom Mr

Kilner appears, through him, foreshadowed that they would

counter-claim for alleged wrongdoing by the applicants.

The matter has proceeded further, Mr Kilner informs me,

since then, in that further work has been done on the proposed counter-claim, and he tells me that the substance of the

counter-clalm was first foreshadowed in a letter written in March

1986, but that because it has been difficult to analyse th nature

of it, ~t still has not been formulated.

Mr Hensler says, in effect, that enough time has now elapsed and that he should not	be held up further by this proposed
counter-clalm. The transactions whlch	are the sublect of the

proceedings took place, according to the pleadings, some years ago

and the lapse of tlme, experlence suggests, will	have already
dlmmed memories.

The counter-claim as foreshadowed by Mr Kilner 1 s

related to the same transactlons, but of course It is concerned with separate alleged wrongdolng from that which the applicants

allege. The question which has troubled me is whether, as

Mr Hensler says, his claim should go ahead without regard to the proposed counter-claim, or whether, as Mr Kilner suggests, the

I).

more convenient course is to hold these proceedings up until the

counter-claim is formulated.

In favour of Mr Hensler's argument, there is this to be said, that since the issues appear to be separate, there is no

special reason why both disputes have to be heard together. The evidence no doubt would to some extent overlap, but the case as proposed to be mounted by the first, third, fourth and fifth

respondents does not necessarily have to be run with the other.

It seems to me that the better course is to let thls
present claim go ahead separately. If the respondents whom I have

mentioned wish to make a claim, there is nothlng to stop them

filing an appllcatlon and dellvering a statement	of clalm; I
think they should do that.	A problem they may strike is the
questlon of the three-year time llmit and its operation,	but that
1 s not my present concern.

I therefore will direct that the foreshadowed

counter-clalm mentioned by Mr Kilner, ~f ~t be made, not be made

in these proceedings, but be the subject of a separate proceeding

The other orders I propose to make are that coples of

statements of the witnesses proposed to be called be exchanged, in

lieu of the date mentioned previously, that is 30 June 1988, on 27

July 1988. It does not seem	to me to be necessary to provide for
any further mention of the matter, which should now	be set down
when it is	ready. However, if the parties wish to have it
mentioned, they may do	so on application to the registrar.

In saying that, I particularly have in mind the matter mentioned by MC Kilner, that he has some difflculty wlth witnesses and may not be able to provide copies of the statements of the witnesses he proposes to call. If that causes problems then it

may be resolved by a further mentlon before the court, or

alternatively the parties may be able to sort it out.

The costs will be costs in the proceedings, and I will

not make any further order. The other orders which I made

previously still stand that the matter is to be set down for trial

by the reglstrar, and I will not list another mention date.

! certify that thk and the 3 preceding

c x e s are a tru:  copy of the reasons for

ludgment hcrein of His Honour