Heytrack (Aust) Pty Ltd v Jumbuck Campers Pty Ltd

[1999] FCA 57

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 20 of 1998

Heytrack (Aust) Pty Ltd v Jumbuck Campers Pty Ltd [1999] FCA 57

BETWEEN:

HEYTRACK (AUSTRALIA) PTY LTD
First Applicant

BOMBARDIER INC
Second Applicant

AND:

JUMBUCK CAMPERS PTY LTD
Respondent

JUDGE:	HEEREY J
DATE:	2 FEBRUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I think the respondents have been quite dilatory, and I would be inclined to make a self-executing order were it not for the fact that in the circumstances of this case the respondent appears to have a case without the currently sought after witness Mr Clifford.  It would be unreasonable to shut them out from defending the claim by other evidence which they have already produced within the time limited.  But I think it is reasonable to achieve some finality about this.  As to the time to be given to the respondent, there is not a great deal of difference.  Mr Nicholas for the respondent suggested two weeks. 

2. So I propose to order that:

   Unless an affidavit by Mr Cliff Clifford is filed and served by 12 February 1999, the respondent shall not be able to rely on any affidavit of that witness without leave of the trial judge. 

3. Since this case is on my docket, the trial judge in all probability would be myself, and I want to make it clear that this is a serious order, and it would not be enough to obtain leave merely to show that in the ensuing two weeks the respondent encountered further difficulty in obtaining an affidavit from Mr Clifford.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:            2 February 1999

Counsel for the Applicant:	Mr G Clarke
Solicitor for the Applicant:	Freehill Hollingdale & Page
Counsel for the Respondent:	Mr J Nicholas
Solicitor for the Respondent:	Sprusons
Date of Hearing:	2 February 1999
Date of Judgment:	2 February 1999