Griffin v Autobarn Pty Limited

[2006] FCA 1602

FEDERAL COURT OF AUSTRALIA

Griffin v Autobarn Pty Limited
[2006] FCA 1602

ADAM GRIFFIN AND ANOR v AUTOBARN PTY LIMITED AND ANOR
NSD 990 OF 2006

RARES J
27 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 990 OF 2006

BETWEEN:

ADAM GRIFFIN
First Applicant

PHILIP GRIFFIN
Second Applicant

AND:

AUTOBARN PTY LIMITED
First Respondent

AUTOBARN LOGISTICS PTY LIMITED
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	27 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed pursuant to O 35A r 3(1)(a). 

2.The applicants pay the respondents' costs of the proceedings. 

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 990 OF 2006

BETWEEN:

ADAM GRIFFIN
First Applicant

PHILIP GRIFFIN
Second Applicant

AND:

AUTOBARN PTY LIMITED
First Respondent

AUTOBARN LOGISTICS PTY LIMITED
Second Respondent

JUDGE:	RARES J
DATE:	27 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an application to dismiss the proceedings pursuant to O 35A r 3 and alternatively, under O 20 r 2(1)(c) on the bases that the applicants have failed to comply with the leave to file a further amended statement of claim on or before 29 September 2006, which I granted on 8 September 2006, and have not prosecuted the proceedings with due diligence. 

2. The matter was last before me for directions on 20 October 2006.  On that occasion, the applicants did not appear.  I granted leave to the respondents to file and serve a motion seeking to have the proceedings brought to an end on that occasion, hence the motion before me this morning. 

3. The applicants have today appeared via their solicitor, Mr Reinoso, who has informed me that the applicants do not have the financial resources further to prosecute the proceedings.  In those circumstances it appears to me that the proceedings ought no longer to remain on foot in the court.  They are not being prosecuted with due diligence.  On the argument before me on 8 September 2006 the previous pleading emerged to be one which could not be sustained in that form, albeit that it may have been curable by proper amendment.  The applicants do not appear to intend to rectify the pleadings and therefore they do not seek to bring before the court in proper form a justiciable issue to be determined.

4. For these reasons, I am of opinion that the proceedings should be dismissed pursuant to O 35A r 3(1)(a).

5. I order that:

   (1)the proceedings be dismissed pursuant to O 35A r 3(1)(a);

   (2)the applicants pay the respondents’ costs of the proceedings.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        22 November 2006

Solicitor for the Applicants:	Woods & Day
Solicitor for the Respondents:	Morgan Lewis Attorneys
Date of Hearing:	27 October 2006
Date of Judgment:	27 October 2006