Felkro Nominees Pty Ltd v Commonwealth of Australia

[1998] FCA 430

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 341 of 1996

BETWEEN:

FELKRO NOMINEES PTY LTD (ACN 005 574 514)
First Applicant

MOREPACK MERCHANDISING (NSW) PTY LTD (ACN 056 351 592)
Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

JOHN SYDNEY DAWKINS
Second Respondent

JUDGE:	RYAN J
DATE:	16 APRIL 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

By motion on notice dated 9 April 1998, the respondents seek orders that:

1.The Respondents’ motion dated 16 March 1998 be listed for further hearing on 7 May 1998.

2.The Respondents have leave to adduce further evidence in support of their motion.

3.Any subpoena issued to Alfred Felberbaum, William Shagrin or David Chapman be made returnable before the Court on 7 May 1998.

By an earlier motion on notice by the respondents dated 16 March 1998, the respondents had sought, amongst others, an order that:

1.The proceeding be dismissed or permanently stayed on the ground that-

(a)the further amended statement of claim dated 23 July 1997 was delivered without the authority of the Applicants.

I regard the present motion as being analogous to an application to amend pleadings which should be allowed if it would have the effect of permitting all matters in controversy to be resolved.  As I understand it, the respondents seek to put into controversy whether the present action is properly being pursued in the interests of the assignee named in the deed of assignment dated 24 March 1998, Precious Metal Sales Pty Ltd, or is being unlawfully maintained in the interests of another company, Norton Vale Pty Ltd.  That is a controversy which the respondents can pursue; whether or not its pursuit is facilitated by my acceding to the present motion. Of course, the respondents’ pursuit of that controversy by whatever vehicle will be at their risk as to costs.

I am not persuaded that the present motion is made otherwise than in good faith.  I find it difficult, despite having given the matter some reflection and having raised it in the course of discussion with Counsel, to impute any ulterior motive for the making of this application which would mean that it has been made for any purpose other than that which I have already indicated.  I do not consider that the principles enunciated in Martell v Consett Iron Co Ltd [1955] Ch 363 as applied by Brennan J (as he then was) in Hodges v State of New South Wales (1988) 62 ALJR 190 at 193 preclude the grant of the relief which the respondents seek.

Accordingly, I shall order:

1. The respondents’ motion dated 16 March 1988 be listed for further hearing on 7 May 1998.

1. The respondents have leave to adduce further evidence in support of their motion.

1. Any subpoena issued to Alfred Felberbaum, William Shagrin or David Chapman and any further subpoenas be made returnable before the Court at 9.30am on 4 May 1998.

In making these orders, I say nothing about the width of the proposed subpoenas or whether they can be set aside on some other ground.  That will be a matter for the recipients of the proposed subpoenas and those advising them.  All rights of those recipients who have not been heard today are, of course, reserved.  I shall reserve the costs of all parties.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan

Associate:

Dated:            16 April 1998

Counsel for the First and Second Applicants:	Mr T Rosen
Solicitors for the First and Second Applicant:	Kelly & Chapman
Counsel for the First Respondent:	Mr C Maxwell
Solicitors for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr C Maxwell
Solicitors for the Second Respondent:	Fiocco Hopkins Rattigan
Date of Hearing:	16 April 1998
Date of Judgment:	16 April 1998