Goode, N.J. v Interchase Corporation Pty Ltd

[1990] FCA 531

531 /?Q---

JUDGMENT NO .......-........ .. .-

IN TIIE FEDERAL COURT OF AUSTRALIA	1	d 6 8 of 1989
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: NEVILLE JOHN GOODE

and KAREN MAREE GOODE

Applicants

AND:  INTERCHASE CORPORATION PTY. LTD. AND OTHERS

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J.

0 3 O C T 1990

DATE OF ORDER:  5 SEPTEMBER 1990 FEDERAL COURT OF

AUSTRALIA PRlNClPU

WHERE MADE:  BRISBANE REGISTRY

THE COURT ORDERS THAT:	' ,
, .
>  .

1.   The Notices of Motion, filed 3 September and 4 September 1990, be dismissed.

2.    The costs of and incidental to those proceedings be

taxed and paid by the solicitors, Messrs Greg I '

Delaney and Neil Hooke.

i '

3.    The Registrar write to the applicants informing them that this has been done on account of the solicitors' delay.

4.    Within 14 days, Mr. Brown of Messrs Greg Delaney and

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

Neil ilooke file a further affidavit in these

proceedings, explaining in more detail the reasons	1 :
for the delay, and explaining the apparent	L
discrepancy between the reasons given in the	i I
correspondence for not complying with the Court's	L
orders, and the reasons set out in his affidavit	1 .:

filed by leave today. 

l ,
1
4.

IN THE FEDENLL COURT OF AUSTRALIA	1	G68 of 1989
QUEENSLAND DISTRICT REGISTRY	1
GENERRL DIVISIW	1

BETWEEN: NEVILLE JOHN GOODE and

KAREN MAREE GOODE

Applicants

AND: INTERCHASE CORPORATION PTY. LTD. AND OTHERS

Respondents

C O N $ PINCUS J.

PLACE: BRISBANE

DATE:  5 SEPTEMBER 1990

EX TEMPORE REASONS FOR JUDGMENT

These are Notices of Motion which were filed on behalf of respondents to the proceedings, namely, the first, third and fourth respondents. The Notices of Motion seek, in substance, that the proceedings be dismissed for non-compliance with the Court's orders. The most recent order which was made and which was not complied with was one of 30 July, which replaced an earlier order which had not been

complied with.

That is, it had been ordered in May that the
statements by the applicants' witnesses be delivered by 25

June. That was not done, and an order was made altering that date to 22 August, and that was not done. There is some correspondence in the papers which I think it necessary to refer to, as throwing light upon the reasons for the delay.

I will take it in chronological' order. On 13 August, which was about a week before the last date for delivery of statements, the applicants' solicitors wrote to say, in effect, that discovery would have to be completed before delivery of the statements of the respondents. It seems to me that the writer probably meant delivery of the statements of the applicants, because that was what was in issue. On 24 August, the same solicitors wrote to say, "We note your demands for delivery of our clients (sic) Statements," and discussed discovery and said that, "We require Discovery and Inspection to be completed before our clients (sic) delivery of Statements." On 28 August, the same solicitors wrote to say that:

"... further parties might have to be joined. ... until the position regarding the joinery of

further Parties and further Discovery ... has been resolved, it would be premature for Statements of Witnesses [to] be delivered".

The last of this series is a letter of 3 September which says, in effect, that the solicitors for the applicants	had spoken to solicitors in Armidale, and that the statements
were to be amended. The correspondence, written by the solicitors for the applicants, suggests that so far from there being a difficulty arising out of the applicants' commitments or the solicitors' commitments, the statements were deliberately not delivered, for the reasons mentioned in the correspondence.

I

Mr Brown, the solicitor who appkirently wrote at least some of this correspondence, has made an affidavit in which he swears to something which is really quite different. T11e substance of the affidavit is that the reasons for the delay were an overseas trip by the applicants and the fact that Mr Brown was otherwise engaged, with other professional work. In addition, a third reason which should perhaps be mentioned is that two days ago some further documents were found. It is a matter of grave concern that the correspondence so ill matches the affidavit and, as I have said, the question arises whether the affidavit, or the correspondence, gives a false impression. I will come back to that point later.

Then the submission made by Mr IIowe, who appeared for the applicants, is that I should deduce from this material, in particular the affidavit, that the delay has been the fault of the solicitors and not the client, and I should not punish the client. With some hesitation, I accept that contention. It seems to me that I should, at least at this

of it. It seems to me to follow that the proceedings should	stage, take the affidavit at face value and that is the drift
not be dismissed and I do not propose to dismiss them.
I have taken into account the matters which have been put before me by Mr Fraser and in particular previous defaults. Nevertheless, in a case where the circurnatances
suggest, at least on the face of them, lack of fault on the part of the client and the delay is not outrageous, it would seem to me unusual to strike the proceedings out.
That leaves two matters to be dealt with. One is the question of costs. In view of the basis upon which the applicants have succeeded in resisting the application, namely that there was delay through no fault of the client, it would seem to follow that the solicitors will have to pay the costs.
It will therefore be ordered that the Notices of Motion be dismissed and that, secondly, the costs of and incidental to those proceedings be taxed and paid by the solicitors, Messrs Greg Delaney and Neil Hooke. Thirdly, I will order that the Registrar write to the applicants, informing them that this has been done on account of the solicitors' delay. Fourthly, I order that within 14 days, Mr Brown file a further affidavit in these proceedings, explaining in more detail the reasons fox the delay, and explaining the apparent discrepancy between the reasons given
complying with the Court's orders, and the reasons set out in in the correspondence (to which I have referred) for not
the affidavit.

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.

7

- c . C - L--

~ssociatb,