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 ApplicantBOMBARDIER INC
Second ApplicantAND:
JUMBUCK CAMPERS PTY LTD
Respondent
JUDGE:
HEEREY J
DATE:
2 FEBRUARY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
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.
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.
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
- AGLC
- Heytrack (Aust) Pty Ltd v Jumbuck Campers Pty Ltd [1999] FCA 57
- Case
- [1999] FCA 57
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of this case revolve around the admissibility of evidence from a particular witness, Mr. Clifford, and the timeline for obtaining such evidence. The applicants sought to limit the respondent's ability to rely on an affidavit from Mr. Clifford unless it was filed and served by a specific date, February 12, 1999. The respondents argued for an extension of time to secure the witness's affidavit, which had not yet been provided despite previous deadlines.
Justice Heerey acknowledged the respondent's delay in filing the necessary evidence but also recognised that the respondent had a viable case without Mr. Clifford's testimony. The judge considered it unreasonable to preclude the respondent from defending the claims based on other evidence already produced. However, to ensure some finality in the proceedings, the court imposed a strict deadline for the filing of Mr. Clifford's affidavit. If not submitted by the specified date, the respondent would not be allowed to rely on his affidavit without obtaining leave from the trial judge, likely to be Justice Heerey himself. The judge emphasised the seriousness of this order, making it clear that a mere assertion of further difficulties in procuring the affidavit would not suffice to gain leave.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.