Guild Management Services Pty Ltd v Credit Reference Association of Australia Ltd

[1985] FCA 496

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IN THE FEDERAL COURT OF AUSTRALIA	)
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NEN SOUTH WALES DISTRICT REGISTRY ) No. G 337 of 1984

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DIVISION GEXERAL )

: - B GUILD MANAGEMENT SERVICES PTY. LIMITED

First Applicant

NETA P m . LIMITED

Second Applicant

NORMAN WINSTON HEPBURN

Third Applicant

AND:

CREDIT REFERENCE ASSOCIATION OF

AUSTRALIA LIMITED

Respondent

9 AUGUST 1985

REASONS FOR JUDGMENT

LOCKHART J.

This is a proceeding which was commenced on 21 September 1984

by the filing of a6 application of a statement of claim in this Court.

The claim is for injunctive relief pursuant to S . 80 of the Trade

Practices Act 1974 and for damages pursuant to S . 82	and for relief
under S . 87.

The claim is ,Tbased upon alleged contraventions of the

consumer protection provisions of the Tgade Practices Act, and in

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brief, as I understand it at this stage, it S ; gssentially a claim

that in 1981 the applicants or some of them sought finance from various finance companies in this country. These companies in turn

referred to the respondent for credit references in relation to the

applicants. It is the respondent's business to provide credit

information on request to its members.

It is alleged that the respondent did furnish information to

the various finance companies from which the applicants had sought

loans, and it is said that the information provided was false and

constituted in the circumstances misleading and deceptive conduct,

thereby contravening the Trade Practices Act.

The case has had an unfortunate history in. that the matter

has been the subject of directions on at least four occasions, and,

without traversing what occurred on each of those occasions, it	is
clear that among the directions given were directions that the

applicants furnish further and better particulars	of the statement of
claim.

This was .done eventually, though not in accordance with

initial directions of the court, by letter from the solicitors ior the

applicants dated 16 April 1985. In that letter certain particulars

sought were given, but the response of the solicitor for the

applicants was not confined to that. It was said by him in relation

to certain requests for Barticulars that they would not be provided as

they were matters of evidence, or that they sought information that

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was not necessary to enable the respondent to plead to the statement ,-.

of claim, or that the applicants would provide the material sought

after discovery and interrogatories.

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I	This is not exhaustive of the subject matter of the reply to
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!	the request for particulars, but is a fair illustration of it. Tne
i	solicitors for the respondent then took out a notice of motion, which
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I	was returnable today, seeking an order that the application and
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statement of claim be struck out for want of prosecution or,
alternatively, that the proper particulars of the statement of claim
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I	be furnished by the applicants.

This is the first occasion on which the court has really been

l asked to look at this matter, other than in a very brief manner

indeed, and it seems to me that the best way to bring this case on for

hearing and to save further delays and misunderstandings is to give

directions for the further conduct of the matter which will be in

substitution for those previously given. It is I think regrettable

that at a very early stage in the case the applicants did not make it

clear to the respondents that they had difficulties in furnishing some

of the information'sought at that stage of the case by reason of the

very 'nature of the case itself. However, that was not done-and it

seems to me the matter has, therefore, gotten a little out of hand.

The particular directions that I propose to give- have been

discussed with counsel rand they are not objected to, either as to their content or the time within which they are to be discussed. I

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must emphasise. however, that these time limits must be complied with .--

and that in the circumstances if they cannot for some reason be

complied with, I expect the party who cannot comply with them to have

the matter restored to the list before the expiration of the relevant

time, and give evidence as to why there is no compliance. I will make

no specific direction in this regard but	it must be	understood as
inherent in the directions.

Accordingly, the Court gives the following directions:

1. The respondent is to file and serve its defence within 21

days of today.

2. The applicants are to file and serve their. reply, if any,

within a further period of seven days.

3 . The parties give mutual discovery of documents, verified by

affidavit within a period of seven days after the expiration of the

time limited for the filing of any reply.

4. The partiks give inspection of documents within a further

period of seven days. -

5. The parties deliver interrogatories that they seek to

administer to any other party within a further period of 21 days.

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6. Verified answers to interrogatories*- be' filed and served

within a further period of 21 days.

7 . The matter will be listed for further directions on Friday,

29 November 1985, at 9.30 a.m. and any party is at liberty to restore

the matter to the list in the meantime on two days notice.

There remains the question of costs. Counsel for the

respondent seeks an order that the respondent's costs of the notice of

motion and the respondent's costs of the directions hearings held on

22 February 1985, 1 March 1985 and 12 July 1985 be paid in any event

by the applicants. Those orders are opposed by counsel for the

applicants.

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The notice of motion seeks as its first order that the

application and statement of claim be struck out for want of

prosecution, which no doubt contemplates the application of Order 30

rule 5. Yet when the motion came on for hearing this morning, counsel

for the respondent informed me that in effect he wished to have the

motion treated as if it were one based upon the failure of the

applicants to compl'y with the Court's previous directions, reflecting

Order 10 rule 7 . That is not the way the notice of motion was iramed,

nor how the intention to bring it was communicated to the solicitors

for the applicants, as appears from the evidence in the case.

Accordingly, 1'; will not be striking out the applicant's

pleadings. Nevertheless the course that I have taken in the interests

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of convenience and justice between the parties does not suggest that

the respondent was not entitled to bring appropriate proceedings with

a view to striking out the statement of claim. Were the motion to

have been based, as I think it should have been based, on order 10

rule 7 , then in the circumstances, I would have been disposed to order that the applicants pay the costs of the respondent of the notice of motion.

However, I think in all the circumstances, notwithstanding

the formulation of the notice of motion or the way in which the intent

to bring it was communicated to the solicitors for the applicants, I

am satisfied that the applicants would have been on notice that their

prior default engendered the application for the notice of motion even

if not entirely appropriately framed, and I think the. proper order is

that the applicants pay two-thirds of the costs of the respondent of

the notice of motion. I do not think it would be proper to order that

the applicants pay the respondent's costs in any event of the three

earlier directions hearings to which I have referred. No doubt they

will be dealt with in the usual way when the case is finally-disposed

of.

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Accordingly, the additi6nal orders I make are thk the

applicants pay two-thirds of the respondent's costs of the notice of

motion filed on	5
be dismissed.
-0 . Raasons fcr : d g m c t herein of hls Honour