Grid Projects Pty Ltd v AMW Sales Pty Ltd
[2011] FMCA 594
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRID PROJECTS PTY LTD v AMW SALES PTY LTD & ANOR | [2011] FMCA 594 |
| CONSUMER LAW – Consumer Protection – Practice & Procedure – vacation of hearing date fixed at first court date – delays and defaults by respondents in preparing affidavits – costs considerations when addressing adjournment application prior to trial. |
| Federal Magistrates Court Rules 2001 (Cth), Sch.1 Trade Practices Act 1974 (Cth) |
| Applicant: | GRID PROJECTS PTY LTD (ACN 116 501 396) |
| First Respondent: | AMW SALES PTY LTD (ACN 110 726 540) |
| Second Respondent: | RICHARD FRANK FURNARI |
| File Number: | SYG 231 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 22 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R King |
| Solicitors for the Applicant: | Robert King Solicitors |
| Counsel for the Respondents: | Mr M Friedgut |
| Solicitors for the Respondents: | Weinberg Lawyers |
ORDERS
Orders 4 to 11 made on 8 July 2011 are vacated.
The respondents must file and serve any amended defence and all additional affidavits, including from its expert witnesses, no later than 2 September 2011. No additional evidence in chief on behalf of the respondents will be admitted at the trial without the leave of the Court.
The applicant must file any amended reply and any evidence in reply on or before 20 September 2011.
Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 5 working days notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.
The proceeding is listed for pre-hearing directions on 18 November 2011 at 9.30am. The parties must forward by email to the Associate on the preceding day short minutes of any proposed directions preparatory for a final hearing.
The proceeding is listed for hearing on 6 December 2011, 3 days allowed. Note that a video facility will be provisionally reserved for 8 December 2011.
The respondents must pay the applicant’s costs incurred by reason of today’s listing fixed in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 231 of 2011
| GRID PROJECTS PTY LTD (ACN 116 501 396) |
Applicant
And
| AMW SALES PTY LTD (ACN 110 726 540) |
First Respondent
| RICHARD FRANK FURNARI |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is a small commercial case involving allegations of breach of contract and of the Trade Practices Act 1974 (Cth), in relation to the compliance with description and merchantable quality of a machine sold by AMW Sales Pty Ltd (“AMW Sales”) to Grid Projects Pty Ltd (“Grid Projects”). Grid Projects is seeking damages which I am informed today may be in the region of $28,000 with, perhaps, some additional interest and some other expenses. Obviously, questions of litigation costs are likely to have become more dominant in the minds of the parties, than the substantive outcome of the case.
The matter was plainly appropriate for this Court, and although started in the Federal Court it was transferred to this Court by order of Moore J on 14 February 2011. I have subsequently held a series of directions hearings which have attempted to maintain a timetable which I ordered on 11 March 2011. This set a complete timetable involving pleadings, an exchange of evidence, mediation, and a three-day hearing to commence on 2 August 2011.
Grid Projects has substantially complied with all of the requirements of my timetable as subsequently amended, but the respondents have been slow in appreciating what a defence of the matter will involve, at least a defence to their liking. The date for the filing of their evidence was initially 6 May, but by two further consent orders, that date was extended to 3 June 2011. A series of bulky affidavits were filed on that day by the respondents purporting to be their evidence-in-chief in response to the applicant’s pleadings and evidence-in-chief. The matter was then mediated unsuccessfully on 6 July 2011. Shortly before the mediation, Grid Projects filed an affidavit in reply in accordance with the timetable.
The matter was then listed before me for a pre-hearing directions on 8 July 2011. After hearing submissions from the solicitors on both sides, I gave directions endeavouring to maintain the hearing date, while allowing an indulgence to the respondents in relation to a belated request to inspect the machine and to file further affidavits arising from the inspection. I set a last date for these steps to be completed, being today. Nothing has been filed.
The respondents also foreshadowed, belatedly, an intention to contemplate seeking security for costs, and I directed any such application to be made returnable today. No application has been made, and it appears to me that the opportunity for seeking security for costs has now passed.
However, the respondents retained today’s listing, so that they could apply for the vacating of the hearing and the fixing of a further timetable. They argue that this is necessary to allow them to investigate and file additional evidence and, I am today informed by their counsel, for additional pleadings to be filed on behalf of the respondents. Personal difficulties in relation to the attendance of the respondent’s principal witness, who is also the second respondent, at the trial in Sydney have also been raised for the first time.
I have difficulty addressing the application to vacate the hearing at this stage of the proceedings, rather than in the course of the imminent trial, because I have only a sketchy appreciation of the importance of the additional evidence which is foreshadowed on behalf of the respondents. As I understand it, this is anticipated to be an affidavit from an American witness from a company who supplied the machine to AMW Sales, concerning the provenance of the machine and its attributes. I am informed by the respondents’ counsel today, although this is not conceded by the applicant’s advocate, that this evidence will be highly important and pertinent to issues arising under the current pleadings. The required additional evidence is also said to include an affidavit from an expert who recently inspected the machine, but has been not able to produce his affidavit before today nor, it seems, in a reasonable time before the trial to allow Grid Projects to assess its importance and how to respond to it.
There is also said to be a need for additional affidavits from witnesses on behalf of the respondents. These are witnesses who are its employees and have already filed affidavits, but wish to make affidavits dealing with matters in the applicant’s affidavits in reply. It is difficult for me to understand exactly what these matters are, and they may well go to matters of credibility which are better responded to in the Court by oral evidence in the course of cross-examination.
In relation to the personal difficulties of the second respondent attending the trial in Sydney, an affidavit filed today by his solicitor deposes on instructions that his wife is “currently pregnant with their fifth child due in September” and has a medical condition causing anxiety. I think it is appropriate for me to accept that evidence, albeit that it was unsupported by relevant medical evidence.
In the course of submissions today, counsel for the respondents readily conceded that his clients were seeking indulgences from the Court in relation to adjournment of the hearing, and could not point to any action by the applicant causing their belated preparation for the trial. They have been on notice for a considerable time as to the hearing date, and they were given, in my opinion, more than ample opportunity to file all their evidence according to the timetables previously directed.
It is conceded by the respondents that any costs arising to the applicant by the vacating of the hearing would be ordered against them. That would also be the situation, it appears to me, if I deferred addressing the need to adjourn to the trial, when I would be better informed and able to appreciate the significance of the evidence for which an adjournment is sought. However, if I did defer the adjournment application, then plainly the costs to both sides from an aborted trial would be considerably greater than if I vacate the hearing today, particularly given the second respondent’s residence in Melbourne and his reasonable employment of a Melbourne solicitor, both of whom would have to attend the trial in Sydney.
This is a case where, in my opinion, this Court needs to weigh up, consistently with its objectives, the costs and other implications of making a less than perfectly informed decision about vacating a trial, rather than one which would be better informed but much more expensive to the parties if it succeeded. As I have indicated to the parties, I have today available an opportunity for an adjourned three-day trial in the first week of December, and I am willing to set aside those days now, although they are in imminent risk of being allocated to other important cases in my docket, in particular, cases concerning offshore entry persons in immigration detention. There is a real risk if I reserve the question of adjourning to the trial, that the applicant will not get a hearing this year if I do not vacate the hearing today.
The substantive relief being pursued by Grid Projects does not point to the litigation being of likely importance to its commercial viability so as to require urgency, although no doubt the issues involved in the litigation are seen as important to it and its directors.
Weighing up all the circumstances facing me today, I have decided that it would be conformable to the purposes of this Court and the usual principles upon which Federal Magistrates case-manage matters before them, for me today to vacate the hearing which was appointed by me at the First Court Date, and to appoint a substitute hearing in the first week of December with a strict timetable on the respondents in relation to any amendments to their pleading and all additional evidence-in-chief or reply.
Given their past history of default and the indulgence sought in today’s application, if the respondents are unable to meet those directions, then they are most unlikely to gain further indulgences from the Court in relation to the matter.
In relation to costs, I consider it appropriate to award costs in relation to today’s listing against the respondents, and to assess them as a lump sum of $2,000 by discounting an assessment under Sch.1 to the Federal Magistrates Court Rules. I note that Grid Projects Pty Ltd does not claim that it has or will incur additional costs by reason of the vacating of the hearing.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 2 August 2011
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