Lombardo Marine Pty Ltd v Commissioner of Taxation

[1988] FCA 630

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C A T C H W O R D S I-

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PRACTICE AND PROCEDURE - motion for dismissal for want of

I prosecution - failure to file affidavits of evidence -

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self-executing order.

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Federal Court Rules 0.52A, 0.20

LOI?BARDO MARINE PTY LTD V THE COMMISSIONER OF TAXATION

Nos. WAG 2132 and 2133 of 1987

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FRENCH J.	i ,I
PERTH

24 OCTOBER 1988 -

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IN THE FEDERAL COURT )

AUSTRALIA OF )

WESTERN	AUSTRALIA	)
DISTRICT	REGISTRY	1

GENERAL DIVISION 1 NOS. WAG 2132 and 2133 Of 1987

B E T W E E N :  LOMBARDO ARINE PTY LTD

Applicant

and

THE COMMISSIONER OF TAXATION

Respondent

MINUTE OF ORDER ..

JUDGE MAKING ORDER: FRENCH 3.

DATE OF ORDER:  24 October 1988

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WHERE MADE:  PERTH

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THE COURT ORDERS THAT: i '

1. The application be dismissed for want of prosecution

unless the applicant shall on or before 28 October 1988

file and serve affidavits on which it would propose to

rely at the hearing of the application. .

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2.         In the event that the application is dismissed the applicant is to pay the respondent's costs thereof.

3. The applicant do in any event pay the respondent's costs

of the motions.

NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT )

AUSTRALIA	OF	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1

GENERAL DIVISION 1 Nos. WAG 2132 and 2133 of 1987

B E T W E E N :  LOMBARDO MARINE PTY LTD

Applicant

and

THE Col-IMISSIONER OF TAXATION

Respondent

CORAM:  FRENCH 3.
24 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

ON MOTION FOR SUl-IIWRY DISMISSAL

This is a motion brought by the respondent in matters I '

numbered 2132 and 2133 between Lombardo l-Iarine Pty Ltd and the

Commissioner of Taxation in which the respondent seeks an order pursuant to 0.52A r.14 that the proceeding be dismissed for want

of prosecution by the applicant and that alternatively, pursuant

to 0.20 r.Z(l)(b) and (c) the proceeding be dismissed. The

respondent has asked that the time for service of the motion be r

abridged. There	has been no objection to that particular order
and the time for service	is abridged accordingly.

The motion is supported by an affidavzt sworn by Mr

Windsor, a sollcitor employed by the Australian Government

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Solicitor,	who	refers	to	the	fact	that	on	14 July	at	an	i
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appointment to list the proceedings for hearing, the District	I .
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Registrar of this Court ordered, among other things, that the

applicant file and deliver on or before 30 September 1988 the

affidavits of the evidence upon which it intended to rely at the

hearing. On 18 October, he had a telephone conversation with the

applicant's solicitor, at which time he was advised that Mr

Vaughan intended to make an application for further and better

discovery, but that if this were unsuccessful he would not	be
filing any affidavits of evidence in these proceedings. It is

common ground that this was subject to the qualification that the

applicant's solicitor would be seeking counsel's advice on that

question. The conversations were referred to in a letter of 20

October 1988 from the Australian Government Solicitor to the

solicitors for the applicant.

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Now the application for further discovery has been

dismissed and as the file stands the applicant has not filed and

served any affidavits	upon which it would seek to rely in pursuit
of this appeal. Nor,	so far as I can ascertain from Mr Vaughan,
does the applicant maintain that the appeal can be argued	on the
pleadings. In the circumstances, it seems to me that if the

position remains as it is, then there will be no basis upon which

the applicant, who does bear the burden of showing the assessment	i .
in question to be wrong, could make out that position. However,
having regard to the drastic nature of the remedy that	is sought,

the applicant's olicitors hould be afforded some short

tunity to obt ,ain counse 81's advice to either confirm the

position of which they have already advised the Australian

Government Solicitor's office or otherwise, and for that reason I

propose to make an order not that the proceedings be dismissed
outright, but that they be dismissed unless affidavits in support

of the application are filed by Friday of this week. The criteria

under Q.52A r.14 for summary dismissal are that an applicant has

not done any act required to be done by or under the Rules or

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otherwise has not prosecuted the appeal with due diligence. The
options available to the court in such case are to dismiss the
proceeding or to make what is, in effect, a springing order or
such order as may seem just. The applicant has not done the act

which was required to be done under the Rules, the Rules requiring

as they do that any evidence shall be on affidavit and the

Registrar having made an order that affidavits be filed by a time

which has long since expired.

I propose therefore on each motion to make orders in the ,-

following terms:

1. That the application be dismissed for want of

prosecution unless the applicant shall on or

before 28 October 1988 file and serve

affidavits on which it would propose to rely	l .:.
at the hearing of the application.	;

2.    In the event that the application is dismissed the applicant is to pay the respondent's costs thereof.

3 . The applicant do in any event pay the I .

respondent's costs of the motions.

I certify that the preceding

three ( 3 ) pages are a true copy of

the Ex Tempore Reasons for Judgment of

his Honour Justice French.

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Associate:

Counsel for the Applicant: Mr J. Vaughan

Solicitor for the Applicant: Freehill Hollingdale	& Page
Counsel for the Respondent: Mr	C. Pullin

Solicitors for the Respondent: Australian Government

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Solicitor

Date of Hearing:	2 4 October 1988
Date of Judgment:	24 October 1988

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