Haysman, M. v Australian Cricket Board

[1989] FCA 363

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO. G17 of 1989

)

GENERAL DIVISION 1

BETWEEN:  MICHAEL HAYSHAN

Applicant

AND :  AUSTRALIAN CRICKET BOARD

Respondent

8 June 1989

REASONS FOR JUDGMENT

LOCKHART J .

This matter is in the list this morning for further directions and also to deal with a notice of motion which has been taken out by the respondent, the Australian Cricket Board.

paragraphs of the statement of claim.

The motion seeks an order which in effect raises for preliminary determination certain questions which it is said will finally dispose of the matter. The motion also seeks an order for further and better particulars of certain

appropriate for the determination of preliminary questions, I am not persuaded at this stage that that aspect of the motion should succeed. I am not satisfied that the determination of the question set out in paragraph 1 of the motion would necessarily finally dispose of all issues in the proceeding between the parties. I need refer only to one matter for this purpose, namely, that the case for the applicants is pleaded not only on the Trade Practices Act 1974 but also on a common law restraint embodied in paragraphs 18 and 19 of the statement of claim.

There appears to be some substance in the respondent's

contention that there would be a saving of both court time and parties' resources if the preliminary determination did take place, assuming it did finally dispose of all issues. I am not persuaded however that that benefit, in the contingent form it seems to me it is at the moment, outweighs the overriding consideration that the determination of the questions as preliminary questions may not necessarily finally dispose of the issues between the parties.

Before questions are severed under Order 29 rule 2 the Court must be satisfied that the determination of those questions will in truth finally dispose of the rights and liabilities of the parties to the proceedings. I am not so satisfied in this case at the present time. Accordingly I decline to accede to that aspect of the notice of motion.

So far as the request for further and better particulars

is concerned the nub of the dispute relates fo paragraph (b) on pages 1 and 2 of the document headed "Amended Particulars" filed on 6 June last relating to the form of arrangements under which alleged servlces are provided by persons as

professional cricketers in order to play and promote cricket.

At some stage I think the respondent is entitled to know the precise basis of the case asserted against it in relation to those matters. In my view it has sufficient material before it to enable it to properly file a defence in the matter. Soon however there ought to be procedures invoked to ensure that the applrcant is bound as to the particular case he proposes to present. This object could be achieved by limited discovery and if necessary by subpoenas to third parties, all of which can be readily encompassed in pre-trial procedures. This is a case where it seems to me the defence ought to now go on. It seems appropriate that the evidence should be by affidaivt evidence subject of course to cross-examination of deponents and directions to that end should now be made.

I give the following directions: I direct that the respondent file and serve its defence on or before 29 June next and that the appllcant file and serve its reply on or before 13 July. I dlrect the applicant to file and serve all affidavits on or before 13 July next and direct the respondent to file and serve all affidalvts on or before 24 August next and the matter is adjourned till 1 August next for further directions.

I give leave to either party to have issued and served returnable for 1 August next any subpoenas to parties or third parties. Costs of the motion to be costs in the proceeding.

I certify that thls and the preceding three ( 3 ) pages are a true copy of the reasons for judgment herern of the Honoura!le Mr. Justice Lockhart.

2F	Asso iate
Date: 8 June 1989

Counsel for the Applicant:  Mr. B. Walker, Mr. G. Burton

Solicitors for the Applicant: Allen Allen & Hemsley as agents

for Arthur Robinson & Hedderwicks

Counsel for the Respondent:  Mr. C. Maxwell

Solicitors for the Respondent:Glover and Glover

Date of Hearing:  8 June 1989

Date of Judgment:  8 June 1989