McIntosh & Company Holdings Ltd v Mocom Systems P/L

[1993] FCA 706

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JUDGMENT No. ........ .... m . . . --.*W-*

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IN THE FEDERAL COURT -OF AUSTRALIA	7..
1
VICTORIA DISTRICT REGISTRY	) No. VG 310 of 1992
)
GENERAL DIVISION	1
B E T W E E N :

MCINTOSH & COMPANY HOLDINGS LIMITED & ORS

Applicants

MOCOM SYSTEMS PTY LIMITED & ORS

m:	Heerey J
m:	9 September 1993

I think litigation of this sort is difficult enough without unnecessarily provocative and aggressive interlocutory applicat~ons which cost money and take up the time of the court.

The motion is one to strike out the statement of claim which may in some cases be an appropriate sanction where there has been failure to make discovery or comply with other directions, but is quite unrealistic in the context of litigation of this sort. These sorts of interlocutory proceedings are not to be encouraged, in my view.

some 17 or 18 items, and conclud~ng:

The respondents' solicitors sent a fax on Thursday, 26 August, shortly before midday, mak~ng a number of demands about allegedly inadequate documentation discovered, extending to

"Unless we receive the documents referred to in this letter or some cogent reason as to why they have not been discovered by 5.00pm on Friday, 27 August 1993 we are instructed to file and serve a notice of motion in relation to your client's inadequate discovery without further notice."

There was a quite detailed response to that fax by a letter from the applicants' solic~tors dated Tuesday 31 August. It was said that that was not received until the following day, 1 September, but in the meantime the respondents' solicitors issued this notice of motion on Monday, 30 August. The response of the applicants' solicitors on its face seemed to indicate - and at any rate it has not been suggested to the contrary - that more, if not all, of the respondents' complaints were without foundation. For example, a number of the documents sought in the fax of 26 August had already been discovered.

I do not think it is reasonable for the respondents' solicitors, having unilaterally set a quite unrealistic

deadline, to say in their defence that the applicants'	solicitors should have come to them and sought some
indulgence. I think it is important to get this litigation back on track without any more exercises of this sort. Counsel for the applicants made an open offer to provide an affidavit of particular discovery under 0.15 r.8 in relation to the particular documents referred to in the respondents' solicltors' letter of 26 August, and I will make such an order. The open offer also was on the basis that the costs of the motion would be costs in the cause. I will make such an order and merely note that, had the matter been argued, I would have seriously considered ordering the respondents to pay the applicants' costs of the motion.
I will direct that on or before 23 September the applicants file and serve an affidavit under 0.15 r.8 in respect of the documents and class of documents described in the respondents' letter dated 26 August 1993.
I will adjourn the directions hearing to 22 October and vacate the directions hearing fixed for tomorrow.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Datgd: 9 September 1993

ADDearances

Counsel for the applicants:	Mr Derham
Solicitor for the applicants:	Blake Dawson Waldron
Counsel for the respondents:	Mr Panna
Solicitor for the respondents:	Clayton Utz
Date of hearing:	9 September 1993