Gillford Pty Ltd & Ors & Burdon Pty Ltd

[1995] FCA 1189

IN THE FEDERAL COURT OF AUSTRALIA ) JUDGMENT No*

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 3670 of 1994

GENERAL DIVISION 1

BETWEEN : GILLFORD PTY LIMITED & ORS

Applicant

AND : BURDON PTY LIMITED & ANOR

Respondent

13 FEBRUARY 1995

REASONS FOR JUDGMENT

LOCKHART J.

The parties Gillford Pty Limited and Burdon Pty Limited, and certain of their respective directors and officers, are in dispute about various matters that originally went back to negotiations for alleged franchise arrangements. Proceedings were instituted alleging misconduct and misrepresentations in relation to these franchise arrangements and in relation to the negotiations leading up to them. In the result, however, mediation procedures were adopted for the issues raised in these first Federal Court proceedings, that is matter number ACTG 118 of 1993.

Then the applicants in proceeding ACTG 79 of 1994 brought separate sets of proceedings. They alleged misrepresentations and other misconduct on behalf of the respondents arising out of the representations and other matters said to have been made and to have occurred with respect to the mediation proceedings and the subsequent settlement agreements that were

entered into between the parties. That was the position until late last year when, it is said by the applicants, there were discussions held on or about 22 December 1994. If the applicant's case is right, these discussions dispose of all the litigation between the parties for all practical purposes because, so it is alleged, the four people concerned, Mr Hannaford, Mr Gilbert, Mr Kent and Mr White agreed in effect to resolve the disputes outstanding between them.

The making of the agreement and the effects of it as contended by the applicants appear to be denied by the respondents. I say "appear to be" because as yet I have not seen evidence from the respondents, but I have seen certain evidence by affidavit from certain of the applicants. The question that has arisen for determination today is what should be done to determine, on a final basis, the questions raised by those discussions held in late December 1994. It would seem that they should be determined as discrete issues and there appears to be no dispute about that - the parties have agreed that those issues should be the subject of amended pleadings by the applicants. This is a sensible course.

But the parties are in dispute as to when those issues should be heard on a final basis. The applicants press for the most immediate date possible because it is said that they are in severe financial difficulties. I have sympathy with that. On the other hand I must take into account the

interests of the other parties and the fact that, although they have had notice for a number of days that the applicants wished to proceed today with the final hearing of these matters, there was no order of the Court and hence no guarantee that the court would hear these matters today.

Furthermore senior counsel for the respondents informs me that he would not be able to appear if the matter was to proceed this week and that it would in normal circumstances, be unfair to his clients to deprive them of the benefit of his appearance because of his long association with the matter. Notwithstanding the fact that the respondents are assisted by competent junior counsel, I understand all that.

The Court can take the matter if necessary later this week. It can also take it on 2 March. The estimates appear to me that the case will take something over a day but under a day and a half and the evidence will be primarily oral. Moreover if it is the latter day then affidavits can be filed on all sides and that would shorten proceedings somewhat. Accordingly, I think that in all the circumstances the interests of justice are best served by proceeding to hear the matter on 2 March next and not this week.

I certify that this and the preceding three (3)

pages are a true copy of the reasons for judgment

he Honourable Justice Lockhart.

Dated: 13 February 1995

Counsel for the Applicants	Mr C P Comans
Solicitors for the Applicants :	Sly & Weigall

Counsel for the Respondents	:	Mr B Toomey QC and Mr C Leggat
Solicitors for the Respondents:	Donovan, Oates &
Hannaf ord
Date of Hearing	13 February 1995
Date of Judgment	13 February 1995