Holden Ltd v Avantek Corporation Pty Ltd

[2002] VSC 372

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
INTELLECTUAL PROPERTY LIST

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:	15 AUGUST 2002
DATE OF RULING:	15 AUGUST 2002
CASE MAY BE CITED AS:	HOLDEN LTD v AVANTEK CORPORATION PTY LTD
MEDIUM NEUTRAL CITATION:	[2002] VSC 372

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RULING – Application for extension of time for compliance with directions – Overseas witnesses – Inadequacy of material in support.

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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:

1. This is an application, made pursuant to liberty to apply, for a further extension of time within which the defendant (plaintiff by counter-claim) may comply with orders made by me on 5 April 2002.  The matter came before me last on 26 July.  On that occasion the defendant sought an extension of the orders made on 5 April and that extension was granted.  In the case of the inspection of documents held by the defendant's former solicitors that extension was until 10 a.m. on 16 August 2002; and, in relation to the filing and serving of affidavit evidence upon which the defendant intends to rely at trial, until 4 p.m. on 23 August 2002.

1. The application for a further extension, that is the application presently before me, is made on material which, to say the least, is less than satisfactory.  I have before me a document which I am informed by counsel for the defendant, and I am prepared to accept, is a document drafted by him in the form of an affidavit which it is anticipated his instructing solicitor will swear some time today.  One's confidence that the affidavit will be in proper form at some time today is however dented by the fact that the proposed deponent, Mr Lipshutz, has not attended court this morning and there is no explanation for his absence.  Nor is there any explanation for his failure to swear the affidavit before the court sat this morning.  It is of course true that the sitting began at 9.30 but nevertheless, this matter being one of importance and urgency, one would have thought that Mr Lipshutz would either have managed to find the time to swear the affidavit or provided, even if only through counsel, an explanation for his failure to do so.

1. The result is that I am left with an unsworn draft document and two further documents which (were the affidavit to be sworn) would, I'm informed, be exhibited to it.  Even then however the material would be deficient.  I would have before me, once the document is in proper sworn form, evidence that Mr Lipshutz was away on holidays between 30 June this year and the following 22 July.  My orders, the subject of today's application, were however made on 26 July, four days after Mr Lipshutz's return.  There is no explanation for the suggestion that the holiday affected Mr Lipshutz's ability to respond appropriately to the situation which was before him immediately following the orders of 26 July.

1. In the draft affidavit Mr Lipshutz says that he has attempted to obtain instructions from his client.  Accepting that this statement will be the subject of a sworn affidavit in due course, nevertheless there is no detail given of the attempts.  I am not able to say whether the attempts were substantial on whether they were cursory.  In my opinion evidence of this kind, in the circumstances presently before me, is quite unsatisfactory.  Where a party has, by its failure to obey the orders of the court, placed itself in a position where self-executing orders are made and where it is sought to extend the time within which the orders are to operate, it is incumbent upon the applicant seeking an extension of time to provide the court with full information about the steps which have been taken to ensure, so far as practicable, that compliance will follow.

1. The criticism just made of Mr Lipshutz's evidence about his attempts to obtain instructions applies equally to the reference in the draft material to the position of Mr Hanafi who is a principal of the defendant.  The draft document states that the defendant intends to file affidavits from persons in Japan, Korea and the United States.  It goes on to say that "the relevant person" has been located in Korea and arrangements to take detailed instructions from that person are underway; but that no persons in either Japan or the United States have yet been identified let alone contacted.  Not only that but there is nothing in the draft material to enable me to judge whether or not the attempts to make contact have been substantial or otherwise.

1. In my opinion, even if the matters to which I have presently referred were in evidence, they would not be sufficient properly to support an application for an extension of time.  I should also say that one of the problems which the defendant seeks to put before me as an excuse for its failure to comply with orders previously made is that relevant documents are held by its former solicitors.  Counsel for the plaintiff has submitted that this problem is not a problem at all because the law is that the defendant's present solicitors are in a position to compel production of the relevant documents by the former solicitors on appropriate undertakings being given to those former solicitors.

1. In my opinion the law in relation to this point has been accurately put to me by Mr McGowan for the plaintiff.  I accept that since the present solicitors were instructed and were placed on the record they have been in a position to overcome what is put before me today as a difficulty that I should take into account in excusing the defendant's failure to place itself in a position from which to comply with the orders already made.

1. Given these considerations there is, in my opinion, a strong basis for refusing any extension of time.  The only substantive consideration the other way seems to me to be that failure to grant an extension would result in the defendant being placed in a position from which it would be very difficult to further defend these proceedings.

1. Mr McGowan has submitted that even if self-executing orders took effect it would be open to the defendant on proper grounds to have those orders set aside.  I accept for the purposes of this ruling that that is so.  Nevertheless proceedings to set aside orders made as self-executing orders would involve expenditure of time and effort and of course might not succeed.

1. Taking all the considerations which seem to me to be relevant into account, I think that I ought to allow a very short extension in the time within which the solicitor for the defendant should produce to the solicitors for the plaintiff the documents the subject of part (a) of the first of the orders made on 26 July.  The defendant has until 23 August to file and serve the affidavit evidence upon which it intends to rely at trial.  I do not propose an extension of that time on the material presently before me.  I do propose that I extend to the same date and the same time, that is 4 p.m. on 23 August 2002, the time within which the defendant must comply with the orders of 5 April 2002 insofar as they related to the production of documents for inspection.

1. I will add that liberty to apply will continue but if a further extension of either order is sought it will need to be made on much better material than is presently before me.  It is on that basis that I have declined to extend the time for service of the affidavit evidence.  I will, if I have proper material before me and if an application is properly made, be prepared to consider an extension of the present deadline, that is 23 August.  I would do so of course mindful of the delays already occasioned by the defendant and without any intimation that an application would be granted.  But I am not prepared to say at this stage that the date of 23 August is set in stone.

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