Holden Ltd v Avantek Corporation Pty Ltd
[2002] VSC 373
•23 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7411 of 2001
| HOLDEN LTD | Plaintiff |
| v | |
| AVANTEK CORPORATION PTY LTD | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 AUGUST 2002 | |
DATE OF RULING: | 23 AUGUST 2002 | |
CASE MAY BE CITED AS: | HOLDEN LTD v AVANTEK CORPORATION PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 373 | |
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RULING – Application for further extension of time for compliance with directions – Overseas witnesses.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. McGowan | Phillips Ormonde & Fitzpatrick |
| For the Defendant | Mr J. Kewley | Cohen Woolf & Weinberg |
HIS HONOUR:
I have before me an application for yet a further extension of orders which were originally made on 5 April 2002. An extension of those orders was first made on 26 July 2002 when, in relation to one of the orders the time limited for compliance was extended to 16 August at 10 a.m. and in relation to the other, to 23 August, at 4 p.m.
On 15 August a further application for a further extension was made. It too was granted, although only in part. On that occasion I extended until today the time within which the documents listed in the defendant's affidavit of documents be produced for inspection by the solicitor for the plaintiff.
The present position is that arrangements, perhaps tentative, have been put in place for inspection to occur later today. There has been no suggestion that that inspection will not enable the solicitor for the plaintiff to inspect all of the documents in respect of which inspection is sought.
In those circumstances I proceed on the basis that there will be an opportunity later today for the plaintiff through its solicitors, to inspect all the documents, inspection of which is sought.
The other order related to the filing of affidavit evidence. In its terms as extended, it was that unless the defendant comply with the orders made on 5 April by filing and serving on or before 4 p.m. today, the affidavits upon which it intends to rely at the trial, the defence and counter claim served by the defendant on 23 October 2001 be struck out.
I am informed this morning that the defendant is not in a position to comply with that order. An extension of time for compliance is according sought. I have evidence before me that one of the affidavits that the defendants seeks to file, an affidavit of Mr Johnny Hanafi, a director of the defendant, will be prepared by the end of next week if leave is given. According to an affidavit of the defendant's practitioner Mr Michael Lipschutz sworn yesterday 22 August, Mr Hanafi although currently overseas will be returning to Australia tomorrow and in the meantime has given instructions to Mr Lipschutz which will enable the swearing of the affidavit in Mr Lipschutz's words "early next week".
Another affidavit upon which the defendant intends to rely has already been served. That is an affidavit of Dominic Prinzi which was sworn yesterday 22 August. It is now before me and shortly I will ask my associate to take such steps as will ensure that it is properly filed.
The defendant intends to rely upon a third affidavit. The proposed deponent is a Mr Chen Wen Kai. I understand that Mr Chen is a resident of Taiwan, that he is a sales manager of a company called Everim, Wheel Company and that he is in a position to swear that that company manufactured a particular wheel, wheel 129, from about 1997 and another wheel, wheel 143, from about 1998 or 1999.
Both wheels are the subject of the proceedings presently before me and I accept the submission of counsel for the defendant, Mr Kewley, that the evidence proposed to be given through Mr Chen will be of considerable significance if this matter is to go to trial. I am told and accept that Mr Chen has been difficult to locate, and it has proved even more difficult to obtain instructions from him.
There is evidence before me however that Mr Chen would be available for a conference early in September although that conference would, of necessity, be held in Taiwan. There is also evidence before me that the defendant has instructed its solicitors to arrange representation in Taiwan in order that instructions be taken from Mr Chen.
I understand that if a conference is had with Mr Chen, in early September, the defendant should be in a position to file an affidavit sworn by him (should it be given the relevant instructions) by the middle of September. The position then is that compliance with the orders made on 5 April should, as I am presently advised, be possible by the middle of next month. In the overall scheme of things that is a further relatively small delay although the incremental delay has now extended for a period that I regard as entirely unsatisfactory.
I also regard as entirely unsatisfactory the fact that the explanation for the delays thus far has been incomplete and, to an extent, less than impressive. It does appear, and indeed I accept, that Mr Lipschutz's firm has had difficulty obtaining funding for their representation of the defendant and even greater difficulty in obtaining instructions.
I accept that the firm is a generally busy one and that Mr Lipschutz in particular - he having the management of this file - has many other calls upon his attention. As a matter of reality one must accept that a busy practitioner having difficulty obtaining funds and obtaining instructions will likely fail to give those clients' interest the attention which in other circumstances they might receive.
To that extent I think I can say that I understand the position of the defendant's instructors. There remain however a number of matters of continuing concern. For example, there is no explanation for the late filing of Mr Prinzi's affidavit. He has not been abroad. There is no suggestion that it has been difficult to obtain instructions from him. There has been no suggestion that financial considerations have stood in the way of his being in a position to file his affidavit within the time originally set down.
I make this point because while Directions and like interlocutory orders of the court commonly cause difficulty in being met, nevertheless if as I think it is true to say here they are made with a view to accommodating the parties as fairly as may be, their disobedience without explanation is a matter which must be of serious concern. I have that concern in relation to this case.
Another example that I might give is taken from Mr Lipschutz's affidavit of 16 August 2002. In paragraph 3 of that affidavit he deposes to the fact that he believes that Mr Hanafi returned to Melbourne "last week on a date I do not know". No explanation is given for the failure to inform the court of the date of Mr Hanafi's return which of course is a material factor in ascertaining whether or not appropriate attempts have been made to ensure that Mr Hanafi has provided his instructors with the instructions necessary for them to continue properly to represent him.
For these and the reasons put forward by Mr McGowan in his customary, able and concise submissions, I have very real concerns about the defendant's ability properly to conduct its defence of this case. There is I think some ground for thinking that a mercy would be done to the defendant if it were prevented from further pursuing the defence as from now.
There are however necessarily considerations on the other side, as Mr Kewley (who has also conducted the case for his side with fairness and expedition) has submitted. We have now reached a point where evidence vital to the defendant's case seems to be almost within its grasp. It would be in that sense unjust to the defendant to deprive it of the opportunity of obtaining the instructions which it expects to obtain from Mr Chen.
There is also the point, as Mr Kewley submitted, that the plaintiff has not put forward any grounds for thinking that it would suffer a substantial prejudice were a further indulgence be allowed to the defendant. If I may say so it seems to me that the fact that no such submission has been made reflects, amongst other things, the candour and fairness with which the plaintiff has conducted its case thus far.
In all the circumstances the position which I think the court ought now to take is as follows. First to stress that there are interests on both side which must be protected. In this regard it is not particularly relevant that one party or the other might be better able to fund litigation such as this. The fact is that both parties have interests which they seek to protect and so far as possible the court must ensure that those interests are protected.
The second point which I think must be made is that disobedience to court orders where there is no explanation for such disobedience must be viewed with concern for two reasons. One is that that disobedience impacts upon the opposite party in perhaps small but incremental ways which even if small in the end amount to, or might amount to, an injustice which that other party ought not to continue to suffer.
The second is that the authority of the court must be maintained. It cannot be maintained by the continued disobedience to court orders without any explanation. It seems to me that the line has now to be drawn. I am prepared to extend the time within which an affidavit might be sworn and filed on behalf of the defendant by Mr Hanafi but on the information presently before me there is absolutely no justification it seems to me for extending that time beyond the end of next week.
If Mr Hanafi is to return tomorrow and if, as Mr Lipschutz's affidavit of yesterday would have me believe, he has already provided many if not all of the instructions necessary for the preparation of his affidavit of evidence, there ought be no difficulty in that affidavit being filed and served by 4 p.m. today week.
I will extend until then the time within that affidavit may be filed and served. I'm also prepared to grant an extension in relation to Mr Chen. That extension seems to me should be no longer than the end of the third Friday in September which, according to my Diary, is Friday 20 September.
I will extend until 4 p.m. on that day the time within which any affidavit of Mr Chen may be filed and served. Otherwise the orders made on 5 April will remain in force so that failure to comply with the time as extended will result in a self-executing order that will come into effect on Friday 20 September.
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