Kolya Management Pty Ltd v Midland Mining Nl

[1992] FCA 1062

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. 3002 of 1991

1

GENERAL DIVISION 1

BETWEEN :  KOLYA MANAGEMENT PTY LTD

Applicant

AND :  MIDLAND MINING N.L. & ORS

Respondent

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) No. 3001 of 1992

1

GENERAL DIVISION 1

BETWEEN :  MIDLAND MINING N.L.

Applicant

AND:  NORMAN MARSHALL EWART & OR$

Respondent

REASONS FOR JUDGMENT

LOCKHART J.

later.

There are bef ore the Court today four motions, three brought by the applicant for whom Mr Boland appears, two of those motions being in matter 3001 of 1992 and one motion in 3002 of 1991. There is a fourth motion by the first to third respondents in proceeding 3002 of 1991. The motions of the applicant seek default judgment in 3001 of 1992 based essentially upon non- compliance with orders for discovery made by the Court on 17 July this year and varied at the request of the respondents a little

There has been in fact no compliance with the order for discovery. Although counsel for the respondents in that matter has told me from the Bar table what he perceives his instructions to be, there is no evidence at all from the respondents telling the Court why their default has occurred and they have had, in my view, ample time to do that. However, I propose to accede to the request of counsel for the respondents that more time be allowed and I propose to allow the time that he has sought, and

I will refer to that time when the orders are formulated.

There is a motion for summary judgment in matter number 3001 of 1992 by the applicants, based primarily on the ground that the defence as filed in that matter is not a good defence because it is in essence a bare denial of allegations and he says further, the evidence that is on the file contradicts the denial. The problem is that the evidence is not complete. Indeed, outlines of evidence or affidavits were directed to have been filed but time has not yet commenced to run for them because discovery has

be.	not been held so I have no idea what the evidence will ultimately
Sometimes a bare denial is not a good defence, other times it is. It does depend essentially upon the assertion to which the denial is pleaded. I have examined the amended statement of claim and the relevant defences and I am not persuaded that the pleading is bad. I do not think there should be therefore summary judgment in matter 3001 of 1992, nor do I think there should in matter 3002 of 1991 where certain declarations of a final nature are sought by the applicants, together with other interlocutory orders, including an Anton Pillar order. I do not think I should accede to the motion, particularly bearing in mind that the hearing date has been tentatively fixed for March next year and the parties should work to achieve that end.
The motion of the first and third respondents in 3002 of 1991 seeks a discharge or variation of an injunction granted by another Judge of the Court from 18 August 1992, which was an ex parte injunction. If an injunction is made ex-parte and is expressed to continue until further order, when the matter comes back before the Court at the instance of the respondent who is enjoined, the onus is really upon the applicant who seeks to sustain the continuance of the injunction in those circumstances. To consider it otherwise would mean that the onus of proof is turned on its head. It cannot be right that the onus shifts because of the form of an order of that kind. However, I am not
of the injunction. Indeed if the time passes into next year persuaded that I should at this stage interfere with the terms
without the trial and the injunction is one which the respondents who are restrained cannot live with, they can always then bring it back.

I think all motions should be not dismissed but should be

stood over to the trial with liberty to any party to restore in the meantime on seven days ' notice. I say seven days rather than three days' notice because the parties are in different parts of the continent, some in Perth and one in Hobart. Accordingly, I order that the four notices of motion be stood over to the commencement of the final hearing with liberty to any party to restore on seven daysf notice.

As to costs of the motions, in my view they should be treated as one because the parties are all here through their counsel to argue all motions today. If I were to sever the motions, then it would follow I suppose that the applicant should have its costs of the default judgment motion but not of the other motions, and in those cases the respondents should have their costs of those motions, but I think the proper order for costs in the circumstances is to make no order as to costs so that each party will, therefore, bear his own costs.

The Court orders that the orders of the Court made on 17

July last be varied as follows:

(1) Order 5 be varied to read this way: In matter 3001 of 1992

the second respondent is to give verified discovery by 26 October 1992, the third, fourth and fifth respondents to give verified discovery by 12 October 1992, the sixth respondent to give verified discovery by 19 October 1992, all other parties in both matters to give mutual verified discovery insofar as any obligation remains still extent by 26 October 1992. I do not interfere with the order for inspection inherent in order 5 on

17 July.

(2) Order 6. Outlines of evidence or affidavits of the

applicants to be filed and served by 13 November 1992.

(3) Order 7 varied so that outlines of evidence or affidavits

of the respondents to be filed and served by 27 November 1992.

(4) Order 8 varied so that outlines of evidence or affidavits

in reply, if any, to be filed and served by 11 December 1992.

(5) Order 9 to be varied so that reports of experts to be

exchanged and filed and served by 27 November 1992.

(6) Order 10 to be varied so that the date of 30 October be

changed to 18 December.

(7) Order 11 varied so that agreed documents to be filed and

served by 29 January 1993.

(8) Orders 12, 13, 14 and 15 will stand.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate Dated: 9 October 1992

MATTER NO. TG3001 of 1992

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Counsel for the Applicant	C. J. Boland
Solicitors for the Applicant :	C. J. Boland

Counsel for the Respondents	:	C.W. Sanderson
Solicitors for the Respondents:	Nicholas Winkler & Turner
Date of Hearing	.	9 October 1992
Date of Judgment	9 October 1992
MATTER NO. TG3002 OF 1991
.
Counsel for the Applicant	C. J. Boland

Solicitors for the Applicant :	C. J. Boland
Counsel for First, Second
and Third Respondents	I.A. Wilson
Solicitors for First, Second

and Third Respondents	:	Wilson & Rogers
Date of Hearing	9 October 1992
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Date of Judgment	9 October 1992