Manufacturing Action Group Inc v Polar Heights Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA )
)

VICTORIA DISTRICT REGISTRY ) VG 46 of 1996
)

GENERAL DIVISION )

BETWEEN: MANUFACTURING ACTION GROUP, INC
(Applicant)

AND: POLAR HEIGHTS PTY LTD
(ACN 007 296 729)

(First Respondent)

AND: DAVID JOHN BLUNDELL
(Second Respondent)

AND: PATRICK FRANCIS BRADY
(Third Respondent)

AND: RAYLEE ANNE MULCAHY
(Fourth Respondent)

CORAM:    Ryan J
DATE:     7 March 1996
PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J: Having heard argument and giving the matter such reflection as I have been able to in the time available, I am not disposed to compel the attendance of Mr Porter at the pre-trial and mediation conference, which I ordered on 13 February 1996, should be conducted not before 1 March.

I accept that a close or direct involvement of Mr Porter or somebody in a similarly authoritative position in that process is desirable. However, I very much doubt whether the Court has power to compel a particular individual to participate in a mediation conference. Whether that occurs is a matter for the commercial judgment of the party in whose interests that person may be taken to be acting.

On the question of the costs of the motion, I accept that when the applicant encountered difficulties in complying with the time limits which I specified on 13 February 1996, it should have had resort to the Court pursuant to the liberty to apply which had been reserved. The fact that it did not do so, in my view, made it reasonable for the respondents, who were under pain of being dealt with for contempt of Court while the injunction remained in force, to move as they did.

However, as the respondents have failed on the second part in issue of the relief which they sought on that motion, I consider an appropriate order to be that the respondents should have half their costs of the motion on notice dated 1 March 1996. In the circumstances, the order of the Court will be that the applicants pay one-half of the respondents' costs of and incidental to the motion on notice dated 1 March 1996, such costs to be taxed in default of agreement, and that otherwise the motion be refused.

[After further submissions by Counsel, his Honour continued]:

In the light of the intimation that has been given by Mr Goldblatt, I shall give Mr Blundell leave, if so advised, to amend his notice of appearance and if the applicant wishes to take up the issue of the genuineness of the address it can do so on proper material pursuant to the liberty to apply which has been reserved.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant : Mr M. Goldblatt

Solicitors for the Applicant : Davies Ryan De Boos

Counsel for the First, Second : Mr M. Kenny

and Third Respondents

Solicitors for the First, : Kalus Kenny

Second and Third Respondents

Date of Hearing : 7 March 1996

Date of Judgment : 7 March 1996

The matter before the Federal Court was a motion brought by Manufacturing Action Group Inc against Polar Heights Pty Ltd and three individuals. The applicant sought an order compelling the attendance of a particular individual, Mr Porter, at a pre-trial and mediation conference. The respondents, Polar Heights and the three individuals, opposed the motion and sought costs of the motion. The case was heard by Justice Ryan in the Victoria District Registry of the General Division of the Federal Court of Australia. The primary legal issues before the Court were whether it had the power to compel a specific individual to attend a mediation conference and whether the respondents were entitled to costs of the motion. The Court considered the arguments from both sides and reflected on the matter. Justice Ryan concluded that while it was desirable for Mr Porter or someone in an authoritative position to attend the mediation conference, the Court did not have the power to compel a particular individual's participation. The Court also found that the applicant should have sought an extension of time when it encountered difficulties complying with the time limits specified by the Court. As the respondents had failed in the second part of their relief sought, the Court ordered that the respondents should have half their costs of the motion, to be paid by the applicant. The Court granted leave for Mr Blundell to amend his notice of appearance and reserved the liberty for the applicant to challenge the genuineness of an address if it wished to do so on proper material.

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