Global Intertrade Pty Ltd v Adelaide Festival Centre Trust

[1999] FCA 1037

FEDERAL COURT OF AUSTRALIA

Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 1037

GLOBAL INTERTRADE PTY LTD v ADELAIDE FESTIVAL CENTRE TRUST

SG 125 OF 1998

MANSFIELD J
ADELAIDE
30 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 125 OF 1998

BETWEEN:	GLOBAL INTERTRADE PTY LTD Proposed Applicant
AND:	ADELAIDE FESTIVAL CENTRE TRUST Proposed Respondent

JUDGE:	MANSFIELD J
DATE:	30 JUNE 1999
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:

1. This matter started with an application for pre-action discovery.  An order was made on 17 December 1998.  An affidavit purporting to comply with that order was filed and served on 20 January 1999, perhaps a few days late.  It did not satisfy the proposed applicant.  There was an exchange of correspondence as to its perceived shortcomings.  The proposed applicant on 9 February 1999 applied for an order that the earlier order be complied with, and complained of those shortcomings.

2. In some respects, that application was successful.  On 25 February 1999, an order was made that an affidavit of discovery remedying the defects which were found to have existed be filed within twenty-eight days.  That time expired on 25 March 1999.  I observe by way of an aside that, as a result of the perceived defects in the process of providing the initial affidavit of discovery, and in the terms of that affidavit, further inquiries were undertaken and further documents were discovered.

3. On 25 March 1999, the solicitors for the proposed respondent wrote to solicitors for the proposed applicant indicating that their further investigations to comply with the order made on 25 February 1999 were ongoing, and had become quite extensive, and that further time was required to comply properly with that order.  At that time, a further three weeks extension was sought from the solicitors for the proposed applicant.  It was not granted.  Solicitors for the proposed applicant, by letter of 29 March 1999, indicated that they would not consent and expressed concern that their application for pre-action discovery and the order then made was now some months old.  The context was that the time within which any proceedings should be issued, at least on one view of the matter, was to expire during May 1999.  It is, therefore, understandable that they were pressing for a prompt response.  They indicated in that letter that if the proposed respondent did not immediately bring an application to extend the time to comply with the orders sought, they would take instructions concerning an application arising out of the asserted failure of the proposed respondent to comply with the order of 25 February 1999.

4. There the communications between solicitors for the parties rested.

5. On 8 April 1999, the proposed applicant, by motion, sought orders that the respondent be dealt with for contempt of court for having failed to comply with the order of 25 February 1999.  On 9 April 1999, in circumstances which I accept were coincidental - that is, not prompted by the motion of 8 April 1999 - the proposed respondent applied for an order extending the time to comply with the order of 25 February 1999.  That motion was adjourned from time to time and, upon the filing of a final affidavit on behalf of the proposed respondent, the time within which compliance with the order of 25 February 1999 was permitted was extended until that last affidavit was filed, namely, 19 May 1999.  The proposed applicant has had the costs of that notice of motion and the earlier costs of its applications.

6. The remaining issue, as the proposed applicant does not press any substantive order in respect of the contempt asserted by its notice of motion of 8 April 1999, is the costs of that notice of motion.  So far as I can see, they would be relatively slight.  Apart from the argument about the costs of the notice of motion, there would be the costs of and incidental to taking instructions to bring that application, and the drawing and settling of the motion together with the supporting affidavits, and possibly the three attendances on 19 April, and 11 and 20 May 1999 when that motion was adjourned.

7. In relative terms, given the nature of the anticipated principal proceedings, the costs are, I suspect, insignificant.  However, I have been asked to rule on the application and I must do so.  I am being asked to rule where there has been no hearing on the merits.  In doing so, I am guided generally by the principles enunciated by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194. In particular in relation to this application, I think the question as to the reasonableness of the proposed applicant’s motion of 8 April 1999 and the fact that subsequent to that motion further documents in fact were identified as discoverable by the proposed respondent may be of significance. In the particular circumstances, I do not place any weight on the latter of those two considerations because it seems to me that the correspondence from the proposed respondent of 25 March 1999 indicated that further inquiries were being undertaken which may lead to that very result.

8. The issue, therefore, seems to me to focus largely upon the reasonableness of the proposed applicant in bringing its notice of motion as and when it did in the face of the correspondence of 25 March 1999 and the elapse of time to 8 April 1999.  I bear in mind, as was pointed out, that over that time the Easter break intervened, and there were five only working days between those two dates.

9. I bear in mind also, as I was asked to do, the terms of the letter from solicitors for the proposed applicant of 29 March 1999 which indicated that those solicitors or their client were concerned that the proposed respondent was not assiduously attempting to comply with the order made on 25 February 1999, and directed attention to a number of matters which, at least from their point of view, should be addressed by the proposed respondent to justify an extension of time to comply with that order.

10. Having regard to those considerations, I am not in a position to form a view as to whether the applicant acted reasonably in bringing the notice of motion on 8 April 1999.  It is unfortunate that there was not further communication between the solicitors, either from the solicitors for the proposed respondent indicating that they would make an application to extend the time to comply with the order of 25 February 1999, or from the solicitors for the proposed applicant indicating a deadline beyond that which was expressed in fairly peremptory terms (that is, immediacy) in the final paragraph of its letter of 29 March 1999, but in the context that it expected the queries expressed in that letter to be responded to.

11. I am not to be taken as reaching a view that the applicant acted unreasonably, but I am left in a situation where I am unable to make a firm finding as to reasonableness.  It seems to me that, there having been no adjudication on the merits, and in the context of the proposed respondent’s letter of 25 March 1999 that there was no particular reason to suspect that the solicitors for the proposed respondent were not genuine in reporting their client’s then inquiries and the scope of them, the appropriate order on the notice of motion of 8 April 1999 is that there should be no order for costs.

12. I do make it clear, however that in so far as the proposed applicant obtained orders in respect of the proposed respondent’s notice of motion of 9 April 1999 concerning the attendances on 19 April and 11 and 20 May 1999, the costs of those attendances should not be divided up between the two motions, each of which were called on on those three occasions.  It would be an almost impossible task for the taxing officer to do so.  It is my observation that most of the attendances on those occasions were addressing the question of the extension of time within which to comply with the order of 25 February 1999.  Accordingly, I make it plain that those attendances should be treated as having been attendances in respect of the proposed respondent’s notice of motion of 9 April 1999 in respect of which the proposed applicant already has an order for costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             30 July 1999

Counsel for the Proposed Applicant:

Mr R Ross-Smith

Solicitors for the Proposed Applicant:

Scales & Partners

Counsel for the Proposed Respondent:

Dr R Baxter

with him

Mr V T Daminato

Solicitors for the Proposed Respondent:

Johnson Winter & Slattery

Date of Hearing:

30 June 1999

Date of Decision:

30 June 1999