Gilbert, C.A. v Tripstar Pty Ltd

[1991] FCA 876

JUDGMENT NO. ... ........ .. ...-........ ... 87b

IN	3)	No. NG 407 of 1991
NEW SOUTH WALES DISTRICT REGIST	RY	1
GENERAL	D I V I S U	)

BETWEEN: COLLEEN ANN GILBERT. BARRY JOHN GILBERT AND

ARTHUR HENRY BEETSON

Applicants

AND: TRIPSTAR PTY. LIMITED

First Respondent

AND: REXSTAR PTY. LIMITED

Second Respondent

AND: JUS TIN BAILEY LAMONT CRAIG

Third Respondent

HA AMES CRAIG

Fourth Respondent

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-.. _ C PINUTES OF ORDER

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D D G E MAKING ORDER:	PINCUS J.
DATE OF ORDER:	4 NOVEMBER 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

included.

The list be filed within two weeks, by 18 November
1991.

Inspection be on or before 22 November 1991.

Particulars as requested by the respondents be filed

by the applicants on or before 8 November 1991.

Amended statement of claim be filed and served by 8
November 1991.

The applicants have leave to join the broker, Power
Jeffrey & Co. Pty. Limited.

Further mention be on Thursday 28 November 1991 at
9.15 a.m..

An hour be kept for it.

The whole of the costs of today, including the argument in respect of discovery, be the respondents' costs in the proceedings.

1.   A list of documents be prepared and filed making discovery on the respondents' side of all documents relevant to the case conserning the Queen's Arms Hotel and dealing specifically with each of the items (a) -

(1) of paragraph 4 of Barry John Gilbert's affidavit

insofar as each relates to the Queen's Arms Hotel.

2 .    The list must also contain financial records relating to the Courthouse Hotel other than primary documents from which those records are derived.

3 .    Any documents relating to trading and sale of Queen's Arms Fine Foods Gourmet Catering Co. be included, that is, documents in category (f) of paragraph 4.

4 .    Documents in category (g) of paragraph 4 be included.

5.   Documents in category (k) of paragraph 4 not be

m:  Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. NG 407 of 1 9 9 1
NEW SQVTH WALES DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN: DLLEEN ANN GILBERT. BARRY JOHN GILBERT

AND ARTHUR HENRY BEETSON

Applicants

AND: TRIPSTAR PTY. LIMITED

First Respondent

AND: REXSTAR PTY. LIMITED

Second Respondent

AND: JUSTIN BAILEY LAMONT CRAIG

Third Respondent

AND: MICHAEL JAMES CRAIF

Fourth Respondent

C O : PINCUS J.

PLACE: BRISBANE

4 NOVEMBER 1 9 9 1

EX TEMPORE REASONS FOR JUDGMENT

One aspect of this matter which is before me is an application made by the respondents to dismiss the proceedings

for want of prosecution. I do not know that that is seriously pressed, and if it is I would not be inclined to dismiss them. The other matter which seems to be a serious dispute is the question of discovery, which has rather a chequered history. The parties do not seem to me to have co-operated at all, and it is to be regretted that a more serious attempt was not made to reach agreement.

The Court cannot function very efficiently, I do not
think, if, among all these matters, the true issues cannot be

isolated - if everything is made a subject of dispute - and I would deprecate that practice. The list, in paragraph 4 of Mr

Gilbert's affidavit, is not one I propose to deal with in detail because the area of dispute is quite narrow. I propose to order full diflcovery in respect of the Queen's Arms Hotel. There seems to me to be no other solution and there was no suggestion made that this would be oppressive, and no suggestion made that it has been carried out to date.

The only addition to that is that, insofar as paragraphs 4(a) to (1) deal with the Queen's Arms Hotel, it will be necessary in the affidavit of documents to state specifically whether or not documents in each category have been delivered. This does not seem to impose too heavy a burden on the respondents.

The more difficult problems relate to the Courthouse Ilotel, to the business of the Queen's Arms Fine Food Gourmet	Catering CO, and to the hotel in which the respondents are
presently interested. I have some apprehension from the experience to date that a limited order with respect to the Courthouse Hotel will not work, for the reason that it would lead to endless squabbles which take up time and money, and may be quite unnecessary.
Nevertheless, in the hope that there may be a more intelligent spirit of co-operation than has prevailed to date,

I will make an order for limited discovery in respect of the Courthouse Hotel. If it turns out that this leads to another dispute, then it will turn out that my assumption that there might be some rationality injected into the case was wrong; but

I will take that risk.

As to the Queen's Arms Fine Foods Gourmet Catering Company, it seems to me that discovery should simply be given. As to the granting of permission to the James Street Bistro to use the Queen's Arms Hotel carpark, I think discovery should be given. As to any other hotel with which the third and fourth respondents, allegedly in breach of warranty, have been concerned, I do not think discovery should be given at this stage.

Therefore the orders will be that:  a list of documents

be prepared and filed making discovery on the respondents' side of all documents relevant to the case concerning the Queen's Arms Hotel, and dealing specifically with each of the items (a) to (1)

to the Queen's Arms Hotel. The list must also contain financial	in paragraph 4 of Gilbert's affidavit, insofar as each relates
records relating to the Courthouse Hotel, other than the primary documents from which those records are derived. For example, it seems to me that the deposit books in relation to the Courthouse Hotel should be discovered, but not the cheques or other documents which may bear upon the deposit books. I will also order that any documents relating to the trading and sale of Queen's Arms Fine Foods Gourmet Catering CO be included; that is, the documents in category (f) of paragraph 4. Similarly, I will order that the documents in category (g) in paragraph 4 be included, but not the documents in category (k) fn paragraph 4.
I will order the list be filed within two weeks. I will order that particulars as requested by the respondents be filed by the applicants on or before 8 November. I will order that an amended statement of claim be filed and served by 8 November. I will give the applicants leave to join the broker, Power Jeffrey Pty Ltd. I will set down a further mention, Thursday,
28 November, at 9.15 am before me, and I will order that an hour
be kept for it. I order inspection be on or before Friday, 22
November.
In my view, the question of costs depends principally upon the fact that the application was languishing and therefore the respondents had to bring it back on; in fact they tried to get rid of it. However, it is also true that the time has not been entirely wasted. It seems to me improbable that the matters which were resolved today would have been resolved other than by
will make the whole costs of today, including the argument about Court order; I therefore propose to temporise somewhat, and I
discovery, the respondents' costs in the proceedings.

I certify that this and the

three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus

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