Giga Investments Pty Ltd(in Liq) v Antoniou

GIGA INVESTMENTS PTY LTD (IN LIQ) & ANOR v ANTONIOU
[2000] SASC 105

Magistrates Appeal: Civil (ex tempore)

WILLIAMS J This is an appeal by Mr Antoniou, the defendant, to the proceedings against the Master’s orders made on 14 December 1999 and 14 January 2000.
On 14 December 1999, at a pre-trial conference, the Master directed that the matter proceed to trial, and dispensed with the certificate of readiness. Rule 74.A.04 of the Supreme Court Rules 1987 (SA) (“SCR”) deals with the procedure leading to an order that a matter proceed to trial, including the filing of a certificate of readiness. Supreme Court Rule 74.A.05 deals with proceeding to trial when a party is not ready. The defendant intimated during this hearing that he was not ready for trial, and that there were further proceedings in aid of discovery which he wished to pursue.
The Master also ordered that the matter proceed to a listing conference.
On 14 January 2000, the Master refused the application of the defendant to adjourn the listing conference. On 14 January 2000 the Master also refused an application, made on 11 January 2000, that the defendant have leave to cross-examine Mr Leonida, a stranger to the action, Mr Klimentou, a defendant by counterclaim, and the plaintiff's liquidator, upon their respective affidavits of discovery sworn on 11 November 1999 by Mr Leonida, on 15 November 1999 by Mr Klimentou and on 19 November by Mr Olifent.
Supreme Court Rule 67.01(6) provides:
“No further interlocutory order shall be made under this Rule after the making of the order to proceed to trial unless special circumstances shall be shown to exist which require such order to be made in the interests of justice”.
Accordingly, the Master refused to entertain Mr Antoniou's application, dated 11 January 2000, by virtue of his order of 14 December 1999, which effectively precluded the further application in the absence of special reasons.
At the hearing on 14 December 1999 Mr Antoniou's solicitor intimated that his client wished to pursue an application to cross-examine upon the affidavits verifying discovery. Although, as I have already said, the application was not made until 11 January 2000. I observe that to make such an order for cross-examination would be out of the ordinary.
In view of the fact that no application to cross-examine was on foot on 14 December 1999, the Master was entitled to proceed as he did, that is, direct that the matter proceed to trial.
On 14 January 2000, the Master, I am told, brought forward for hearing, the application for leave to cross-examine. I note that that application, on its face, had been fixed for hearing on 2 February 2000.
When that matter was dealt with the question as to whether special reasons existed were not pursued and the Master, I am told, made his order refusing the application by virtue of SCR 67.01(6), namely that no application was entitled to be made unless special circumstances were shown to exist.
Mr Antoniou claims that an injustice has resulted because, in view of the way in which the matter proceeded, the possible application of SCR 67.01(6) was not addressed on 14 January 2000. The defendant's counsel upon this appeal, Mr Abbott, submits that his client has been seriously prejudiced and, all else failing, his client may have to seek an adjournment of the trial to enable the defendant to complete his inquiries.
The plaintiff's claim is for stock supplied to Mr Antoniou as the operator of Barnacle Bill Melbourne Central, a franchise of a food outlet. In addition to the claim for stock, the plaintiff is also claiming reimbursement for various payments allegedly made on behalf of Mr Antoniou to third parties. The defendant has counterclaimed against the plaintiff, and has included Mr Klimentou as a defendant by counterclaim based on an allegation that Mr Klimentou has been guilty of a breach of duty to the defendant.
That may be, of course, an oversimplification of the situation, but it suffices for the purposes of today's hearing.
The liquidator of the plaintiff has only incomplete primary records available to him and has put forward a claim based largely on secondary records which themselves may constitute a business record for evidentiary purposes.
As Mr Antoniou challenges the accuracy of the secondary records it is vital to his case that he obtain access to the primary records if they can be located. Accordingly, Mr Antoniou's advisors, relying on alleged inadequacies on the face of the affidavits verifying discovery, seek an opportunity to cross-examine upon the affidavits.
In my view, Mr Antoniou is not entitled to complain as to what happened on 14 December 1999. In my view, the Master then proceeded in accordance with the normal practice.
The plaintiff’s liquidator has been prepared to put beyond doubt the criticisms which were made against his affidavit of discovery and Mr Olifent has sworn two further affidavits which deal with these matters.
The fact of the matter is that Mr Olifent has made extensive inquiries and, as it now appears, Mr Olifent’s discovery is complete.
As the defendant complains that the application made on 11 January 2000 was not dealt with on its merits, it seems to me that the justice of the situation will be done if I allow the appeal for the purposes of enabling the application, which is document number 102, to be dealt with on its merits, notwithstanding the provisions of SCR 67.01(6).
I am satisfied that, in the circumstances of this case, special circumstances exist which would enable the application to be made, but whether the application to cross-examine will be successful is another matter.
It may be that, at the end of the day, the application will be regarded as having insufficient merits, but it is not possible to discern this from the material which I have looked at.
The problem has come about by the procedural omission of the defendant to make his application by 14 December 1999 and it is on that footing that I will deal with the question of costs.
The order will be that, and I will settle this order in due course, the appeal be allowed, limited to the order made on 14 January 2000, dismissing otherwise than on its merits, the defendant's application to cross-examine Mr Leonida and Mr Klimentou. The defendant will be at liberty to renew that application before the Master for hearing on its merits.
In the view that I take of where the cause of the problem is, namely procedural omission on 14 December 1999, I consider that the proper order is that the appellant should pay to the plaintiff liquidator the costs of the appeal.
It has come to my attention that the defendant will not be available on the date when this matter is due to come on for hearing later this year by reason of commitments that he has in respect of his own professional practice in Victoria. If the defendant wishes to raise this question as giving rise to a basis for an adjournment I direct that he bring such application before a Master forthwith at the same time as application for leave to cross-examine is pursued.
It, of course, follows that the application for leave to cross-examine the liquidator, Mr Olifent, will not be taken any further.

[2000] SASC 105

31 March 2000