Gulf Conveyor Systems P/L v A.C. Whalan & Company P/L

[1994] FCA 509

S09 qv

JUDGMENT NO. m--

Between:

Respondent

LILLITED

Second ADDlicant/Second

Aud:

First Respondent/First

Cross-Applicant

A

- Second Respondent/Second

03 AUG 1994 Cross-Applicant

-

I propose to give leave to withdraw the admissions but for very limited reasons. It seems to me that the respondent's position was at least being reserved as to whether any or all of the

trying to hold the line on the question of admissions over a difficult time of the year to ascertain whether any or all of the

admissions would be made and that the so-called admissions by

operation of law were more by accident than by intent and were of a technical rather than a substantive kind. I dealt with these circumstances on a previous occasion and I do not propose to go over them now in detail. It is clear from the correspondence of the respondentsp solicitor that he was simply

-admissions should be -made. I do not really think that a conscious decision was ever made to make the admissions, either absolutely or by default.

The other reason for allowing the so-called admissions to be withdrawn is because I am not satisfied on what I have been today told by the respondents as to what the case is really about, effectively for the first time, that the admissions are particularly relevant to the matter likely to be litigated. For that purpose I propose to put the whole of the section 592 claim to one side for the present time. It can be resurrected later.

Aa to the principal claim, there is obviously a need for an

amended defence. There is also a need for the respondents' evidence to be filed and for whatever discovery and inspection that has not yet taken place to be finally and absolutely completed. I will not accept again a statement that "we don't have the documents", or any variation of that. If there are documents missing that there is reason to believe exist, then the applicants are to be told precisely what documents are required.

Of course, I will expect a frank and open response from the	applicants in return.
At the completion of the respondents' evidence and any evidence of the applicants in reply, it should be possible to identify by an agreed statement of the parties what specific matters have been admitted by the respondents. For obvious reasons the Court will not engage in an invoice by invoice examination in this case. That would take'far too long and would be a complete waste of the Court8s extremely meagre resources. It simply will not happen. If there is no agreement because the parties are unable to allow comnsense to operate, I will either get a registrar to mediate the matter so as to clarify the disputes or refer the matter-out to a Court-appointed expert at the parties' expense to do so. It is just unthinkable that a Judge could be required by parties to go through on an invoice by invoice basis to establish whether goods were delivered, whether they were paid for, whether they were returned or what happened to them, when the facts must be known between the parties, at least on a prima facie basis. Ae I pointed out in argument, cross-examination will simply not be allowed under the ruse of a "do not know and cannot admitm or "do not disputeu-type defence which is just fishing for some weakness in the other side's position. There will have to be substantial and substantive matters put in this regard. The parties should be on notice that all future pleadings and matters of this kind will have to be verified and I will not accept statements from the bar table about what sfmebody is being put to the proof of. There will have to be a
be asked to resolve and rationalise the real dispute so as to basis upon which a registrar or a court-appointed adviser will clarify quite specifically what the Court is being asked to determine.
A verified amended defence will be filed and served by not later than 4 pm on Friday 8 July. Any reply will also be verified and filed and 'served by not later than 4 pm on Friday, 22 July. The respondents' affidavits which, like those ofthe applicants, will represent the evidence in chief of the witnesses intended to be called are to be filed and served by 19 August. I re-affirm order 5 by way of directions made on the last occasion, which
gives Hr Ben jamin until 30 September to file his af f idavite . The
evidence of the applicant in reply to the evidence of the Whalan interests will be filed and served by not later than 4 pm on Friday, 16 September. The affidavits in reply by the Whalan interests to Mr Benjamin's evidence will be filed by not later than 4 pm on Monday, 24 October. The matter is presently listed for 9.30 am on 25 October which I shall leave undisturbed. At that time, I will entertain again an application by the applicants for admissions on the part of the respondents, but first will require a chart setting out what matters, alleged by the applicants as essential to the proof of their case, have been admitted and not admitted, as the case may be, on the pleadings or in the filed evidence or documents.
Costs will be reserved on the application for leave to withdraw the admissions. On that application, I should mark some of this
of 24 April and 31 May 1994 will be marked exhibit A1 on the correspondence. The two letters from Abbott Tout to Mr Halpin
motion. The notice disputing the facts and authenticity of documents will be marked as exhibit R2, and the demand of Gulf on GIS of 22 April 1992 and the letter of GIS to Gulf of 28 April 1992 will be marked exhibit R3.

I Certify that this and the

preceding pages are a true copy of the

Justice Elnfeld