Farmitalia, C.E. v Delta West Pty Ltd

[1995] FCA 122

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )        No. VG 49 of 1992
  )
GENERAL DIVISION                 )

B E T W E E N:

FARMITALIA CARLO ERBA SRL
  Applicant
  - and -

DELTA WEST PTY LIMITED
  Respondent

JUDGE:    Heerey J

DATE:     3 March 1995

PLACE:    Melbourne

REASONS FOR JUDGMENT

I am persuaded that the long delay in this matter, and the fair warning that was given by Northrop J on 12 December last, point strongly against even further extension of time.  It is perhaps unfortunate for the respondent that the service they have had from the senior counsel they retained, not Mr Young QC presently appearing, is less than they might have been entitled to expect. 

As Mr Clarke says, it has not been shown that the respondent could not have engaged other appropriately qualified counsel, either here or in Sydney or perhaps elsewhere in Australia, to settle affidavits which have already undergone a lot of expert work by the solicitors.  I am not satisfied that appropriate counsel cannot be engaged to complete the work by 3 April.  I will extend that date to 3 April.  To underline the seriousness with which this sort of continuous default is viewed and the prejudicial effect it has on the reasonable conduct of litigation, a self-executing order will be made be in the form contended for by the applicant.

It seems to me that the defence of invalidity cannot realistically be separated into evidentiary and non-evidentiary aspects.  The respondent has chosen to make this plea and has been extremely dilatory in conforming with the necessary procedures to enable it to be dealt with by trial.

I will order that unless the respondent files and serves all affidavits sought to be relied upon by it on the question of validity by 3 April 1995, paragraph 4 of the respondent's defence be struck out and paragraph 9 and 10 of its cross-claim be dismissed and that the proceeding continue on the issue of infringement.  I order the respondent pay the applicant's costs of this motion.  Liberty to apply is reserved on 48 hours' notice.

I adjourn the directions hearing to 21 April 1995.

I certify that this and the preceding two pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr G Clarke

Solicitor for the applicant:     Blake Dawson Waldron

Counsel for the respondent:      Mr N Young QC

Solicitor for the respondent:     Minter Ellison Morris Fletcher

Date of hearing:                 3 March 1995