Manildra Flour Mills v Anderson Holdings
[2005] FMCA 895
•17 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANILDRA FLOUR MILLS v ANDERSON HOLDINGS | [2005] FMCA 895 |
| TRADE PRACTICES – Failure to comply with orders for presentation of evidence by both parties – adjournment. |
| Applicant: | MANILDRA FLOUR MILLS PTY LIMITED ACN 000 217 523 |
| Respondent: | ANDERSON HOLDINGS (QLD) PTY LTD TRADING AS MARACOONDA AUTOMOTIVE ABN 36 066 837 536 |
| File Number: | SYG 3597 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 May 2005 |
| Date of Last Submission: | 17 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Turnbull |
| Solicitors for the Applicant: | Teece Hodgson & Ward |
| Counsel for the Respondent: | Mr M Morrisey |
| Solicitors for the Respondent: | Simmonds Crowley & Galvin |
ORDERS
Hearing adjourned to 20 and 21 July 2005.
Applicant to file and serve any affidavits bearing upon its reliance upon the alleged representations of the respondent on or before 31 May 2005.
Applicant to file and serve any evidence in response to the affidavits of Mr Anderson and Mr Grdusiak on or before 20 June 2005.
Experts to exchange reports and prepare a schedule of matters in which they are in agreement on or before 8 July 2005.
Parties to file outline of case to my associate not later 15 July 2005.
Parties shall mediate the dispute before a Registrar of this court on a day to be agreed prior to 25 June 2005.
Costs reserved.
Liberty to apply on two days notice.
The respondent to have leave to file and serve supplementary list of documents on or before 20 May 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3597 of 2004
| MANILDRA FLOUR MILLS PTY LTD ACN 000 217 523 |
Applicant
And
| ANDERSON HOLDINGS (QLD) PTY LTD TRADING AS MARACOONDA AUTOMOTIVE |
Respondent
REASONS FOR JUDGMENT
The matter that has come before me today was commenced by application filed on 9 December 2004. It was given what we call in this court a “first return date” or “first court date” of 14 February 2005. The matter came before me on that day when the parties were represented by their solicitors. I believe that the respondent, which is a Queensland company, is represented by solicitors in Queensland via the telephone. The parties produced some short minutes of order dealing with the way in which the case would progress. They particularly requested that the Federal Court Rules should apply to the proceedings.
They claimed a level of sophistication which the court was happy to indulge. The orders provided that the applicant file any affidavits in reply to the respondent's affidavit by 27 April 2005. By that time, the respondent had filed a very substantial affidavit on 10 February. There were no other orders about evidence. I cannot recall now whether I asked the question that I would normally ask as to whether any expert evidence was to be called, but a date for hearing on 17 and 18 May was given. The date for hearing assumed that the evidence would be completed by 27 April or shortly thereafter.
When the case commenced and after opening by the applicant, the respondent made a number of applications. The first application related to certain evidence about to be called on the part of the applicant. The respondent wished the whole affidavit of Mr Allport to be struck out I did not consent but some of those matters which influenced me in that decision will come into play in relation to the decision I am about to make. The respondent now seeks to file two further affidavits and call two further witnesses, one of whom is an expert and the other, although a director of the respondent company, is also really giving his evidence as an expert.
I am told that a number of the documents which are important for the purposes of understanding the affidavit of Mr Anderson only arrived today. Some other documents the affidavits themselves, may have arrived at the commencement of this week and possibly very shortly before. Some documents only arrived last night. The matters raised in the affidavits appear to go to a question of how much time it would be reasonable to assume the respondents would take to convert a motor vehicle from left hand to right hand drive.
Mr Morrisey who appears on behalf of the respondents, told me that these matters are controlled by strict legal requirements and cites the 80 Australian design rules which are relevant. The affidavits apparently deal with these matters and explain how long each would take and what is required.
The short explanation I have given above is probably enough for one to realise that such evidence cannot be dealt with on the run. It would require at least detailed instructions and probably the briefing of an expert in response. I was not asked, as far as I can recall, to allow expert evidence or to make any orders in relation to it. If I had I would have made the usual orders requiring the transmission of each expert's report from one to the other in an attempt by the experts to narrow down the areas of disagreement. None of that has happened.
As things stand at present we have two apparently lay witnesses and the case will be concluded by tomorrow. Mr Morrisey would say there are serious defects in the affidavit of one of the witnesses for the applicant. If I was minded to grant Mr Morrisey his wish then I would doubtless be met by an application from the applicant to enlarge the evidence of Mr Allport. If I accede to the applicant's protestations and refuse to grant the respondent leave I would also decline to allow Mr Allport's evidence to be in any way enlarged. But I think in the circumstances I should adjourn the matter and note the following orders
(1)Hearing adjourned to 20 and 21 July 2005.
(2)Applicant to file and serve any affidavits bearing upon its reliance upon the alleged representations of the respondent on or before 31 May 2005.
(3)Applicant to file and serve any evidence in response to the affidavits of Mr Anderson and Mr Grdusiak on or before 20 June 2005.
(4)Experts to exchange reports and prepare a schedule of matters in which they are in agreement on or before 8 July 2005.
(5)Parties to file outline of case to my associate not later 15 July 2005.
(6)Parties shall mediate the dispute before a Registrar of this court on a day to be agreed prior to 25 June 2005.
(7)Costs reserved.
(8)Liberty to apply on two days notice.
(9)The respondent to have leave to file and serve supplementary list of documents on or before 20 May 2005.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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