Manufacturing Action Group Inc v Polar Heights Pty Ltd

[1996] FCA 166

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