Igaki Australia Pty Ltd v Coast Mine Pty Ltd

[1991] FCA 879

BETWEEN:

First Applicant

AND: P.I. GAYKUEN

Second Applicant

AND: COAST MINE PTY. LTD.

First Respondent

AND: m T JAMES BURGESS

Second Respondent

AND: NICHOLAS CASSAR CARLOS

Third Respondent

Y M U A WATANABE

Fourth Respondent

PAUL GERARD STEER

Fifth Respondent

MINUTES OF ORDER

December 1991 at 9.30 a.m.

JUDGE MAKING ORDER!	PINCUS J .
:	-	26 NOVEMBER 1991
WWERE:	BRISBANE
THE COURT ORDERS THAT:

1.     The order made 31 October 1991 that the matter be set down for trial on a date to be fixed by the Registrar be struck out.

2 .     Any further pleadings to be delivered by the Fourth

Respondent be delivered on or before 3 December 1991.

3 .     The matter be set over for further mention on Tuesday 10

L i

4.     Costs of today be costs in the proceedings.

!Eml:	Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

IN FEDER& COURT OF AUSTRAL14 1 Np. QG 103 of 1991 I

CT REGISTRY )

mNERAL DIVISION 1

BETWEEN: JGAKI AUSTRALIA PTY. LTD.

First Applicant

AND: R.I. GAYKUEN

Second Applicant

AND: COAST MINE PTY. LTD.

First Respondent

AND: ROBERT JAMES BURGESS

Second Respondent

AND: NICHOLAS CASSAR CARLOS

Third Respondent

AND: YASUA WATANABE

Fourth Respondent

AND: PAUL GERARD STEER

Fifth Respondent

:  PINCUS J.

PLBI;E! BRISBANE

m: 26 NOVEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

This matter came before the Court on 31 October 1991

and two suggestions were made, one of which was the subject of
an order. The purpose of the suggestions was to avoid, if

possible, the costa and expense of a full trial. Somewhat

surprisingly, both suggestions - even the one that was the
subject of an order - were ignored. The first suggestion

which became the subject of an order wae t h a t there be a

mediation. Nothing has happened about that, and I accept what
is said by Mr Howe, that his side thinks that it is worth

having. In a trial which is thought likely to take perhaps a month or more, it is an obvious course, and I am disappointed that the parties have ignored the order which was made. The

second suggestion was that there be a Court appointed expert, an accountant, and nothing has been done about that. I think that is a mistake and that it would probably be advantageous

to have an accountant give a report to the Court on the
accounting issues. However, nobody has made an application
that that should happen and I will not therefore appoint one,

because I cannot.

I do take into account, however, the course which

the parties have adopted of doing nothing about these
proposals for trying to achieve a resolution of the matter, in
making the next order which I make, which is that the order

that the matter be set down for trial on a date to be fixed by

the Registrar is struck out. I do not propose to have this

matter set down until the parties have made a serious attempt

to mediate it, so that the course which the parties have

adopted have cost them something; if they really wanted an

earlier trial, they are not now going to get one.

One other matter raised by counsel was the question

of discovery, and I accept what Mr Craswell says, that,
insofar as it has not been dealt with, it will be dealt with
promptly, and that does not seem to require any order. Next,
it is suggested by Mr Howe that the fourth respondent might
wish to deliver a further pleading making a claim, and I
accept what is said by Mr Craswell that a time limit should be
put on that, and it will be ordered that any further pleading
to be delivered by the fourth respondent be delivered on or
before 3 December; that is a week's time.

I think that the parties should have an opportunity

to determine whether they want to push hell-bent onto a trial,
or ought to adopt, or at least comply with, the order which
was made for mediation. The performance which the parties,
and in particular the applicant, puts up in that respect in
the next week or two will determine whether they get the
special consideration for an early trial which they were going

to get. So I am going to set the matter over for a couple of

weeks, and if there is a continuing course of ignoring the
Court's desire to have the matter mediated, then this matter
will simply have to wait its turn.

I will set the case over for further mention on

Tuesday, 10 December at 9.30 am, and we will see then what is to be done. So that, the orders which I have made previously

stand, except for the order for setting the matter down for

trial which has been expunged. The costs of today will be

costs in the proceedings.

I certify that this and the
two preceding pages are a
true copy of the reasons
for judgment herein of his

Honour Mr. Justice Pincus

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a .C-. L - 7 - -

Associate

Date 26 N u v ~ ~ n b e v !471