Gaffney v RSM Bird Cameron Partners (a firm)

[2012] FCA 1221

FEDERAL COURT OF AUSTRALIA

Gaffney v RSM Bird Cameron Partners (a firm) [2012] FCA 1221

Citation:		Gaffney v RSM Bird Cameron Partners (a firm) [2012] FCA 1221
Parties:		ANGELA GAFFNEY v RSM BIRD CAMERON PARTNERS (A FIRM) and BIRDANCO NOMINEES PTY LTD LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) ACN 009 321 377
File number:		WAD 281 of 2010
Judge:		GILMOUR J
Date of judgment:		18 October 2012
Date of hearing:	18 October 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Counsel for the Applicant:	Ms F O'Brien with Ms L Kirwan
Solicitor for the Applicant:	Ilberys Lawyers Pty Ltd
Counsel for the Respondents:	Mr C Goldblatt
Solicitor for the Respondents:	Hammond King Touyz

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 281 of 2010

BETWEEN:

ANGELA GAFFNEY
Applicant

AND:

RSM BIRD CAMERON PARTNERS (A FIRM)
First Respondent

BIRDANCO NOMINEES PTY LTD LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) ACN 009 321 377
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	18 OCTOBER 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.On or before 29 October 2012, the respondents file and serve their application under Rule 26.01(1)(a) (“the application”) including any affidavits in support thereof.

2.On or before 28 November 2012, the applicant file and serve any affidavits in response to the application.

3.On or before 3 December 2012, the respondents file and serve their submissions in support of the application.

4.On or before 10 December 2012, the applicant file and serve her submissions in opposition to the application.

5.The application be listed for hearing before the Court on the next available date after 17 December 2012.

6.There be liberty to any party to apply on giving 5 days’ written notice to the other parties.

7.Costs be reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 281 of 2010

BETWEEN:

ANGELA GAFFNEY
Applicant

AND:

RSM BIRD CAMERON PARTNERS (A FIRM)
First Respondent

BIRDANCO NOMINEES PTY LTD LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) ACN 009 321 377
Second Respondent

JUDGE:	GILMOUR J
DATE:	18 OCTOBER 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. These are my edited reasons for the orders made on 18 October 2012. 

2. The respondents are seeking to bring an application for summary judgment in relation to not the entirety, but most of the causes of action alleged against it in the most recent iteration of the statement of claim, filed by the applicant in early August this year.  There is a difference of view as to the breadth of evidence likely to be required on the part of the respondents should the matter proceed to trial.  I, self-evidently, cannot come to any conclusion about that on the limited information I have at present.

3. The applicant submits that I should list the summary judgment application at the same time as the first day of the trial or to list the trial immediately following upon the listing of the summary judgment application.  The underlying rationale for the summary judgment procedure is to avoid expense and cost, not only to the parties but to the public in avoiding unmeritorious cases going to trial.  It seems to me that it would be inimical to that objective and rationale for me to set the matter down for trial at the same time, or to follow on from the hearing of the application or, indeed, to set down the matter for trial at any time until the resolution of that application.  I decline to do any of those things.  The summary judgment application should be resolved before there is any question of listing the matter for trial.

4. I will make orders in terms of the respondents’ minute of proposed orders dated 18 October 2012, subject to amending the dates in Orders 2 to 5 inclusive.  

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       5 November 2012