Metcash Trading Limited v Bunn (No 2)

[2008] FCA 1384

FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited v Bunn (No 2) [2008] FCA 1384

METCASH TRADING LIMITED (ACN 000 031 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN

SAD 29 OF 2006

LANDER J
2 SEPTEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 29 OF 2006

BETWEEN:

METCASH TRADING LIMITED (ACN 000 031 569)
First Applicant

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)
Second Applicant

AUSTRALIAN LIQUOR MARKETERS PTY LTD
(ACN 002 885 645)
Third Applicant

AND:

PETER CHADLEY BUNN
Respondent

JUDGE:	LANDER J
DATE OF ORDER:	2 SEPTEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The respondent’s notice of motion of 8 April 2008 be dismissed.

2.The respondent pay the applicants’ costs on an indemnity basis.

3.The respondent’s application in the notice of motion of 7 March 2008 to amend the respondent’s defence in accordance with the document exhibited to his affidavit of 14 May 2008 be dismissed.

4.The respondent pay the applicants’ costs on an indemnity basis

5.The applicants be entitled to have a bill of costs taxed in relation to the orders for costs made today, immediately and prior to the principal proceeding being disposed of.

6.The respondent make any application for leave to further amend his amended defence within 21 days, which application must be accompanied by an affidavit exhibiting the proposed amended defence.

7.The respondent provide to the Court a recordable compact disk of all documents referred to in the orders of the Court of 4 May 2007 and all such further electronic records in his possession, custody or power, relevant to the issues in dispute of the respondent within 14 days.

8.The applicants have access to the document referred to in paragraph 7 once it is provided to the Court.

9.The transcript of today’s hearing be made available to the respondent.

10.The directions hearing be adjourned to 30 September 2008 at 9.00am.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 29 OF 2006

BETWEEN:

METCASH TRADING LIMITED (ACN 000 031 569)
First Applicant

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)
Second Applicant

AUSTRALIAN LIQUOR MARKETERS PTY LTD
(ACN 002 885 645)
Third Applicant

AND:

PETER CHADLEY BUNN
Respondent

JUDGE:	LANDER J
DATE:	2 SEPTEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the applicants pursuant to O 62 r 3(3) of the Federal Court Rules for an order that the applicants be entitled to have a bill of costs taxed in relation to two orders for costs which I have made this morning.  This is a long running proceeding which has been dogged by numerous interlocutory applications which have delayed the proceeding coming to trial.  In March of 2007 the respondent made an application for further and better particulars of the applicants’ statement of claim.  That matter was eventually heard on 16 December 2007 but, before a decision was made in relation to the application, the applicant, by notice of motion of 8 April 2008, sought further and more extensive particulars of the respondent’s further amended statement of claim.

2. On 12 March 2008 the respondent also filed a notice of motion seeking to amend the respondent’s defence in accordance with a document which was annexed to an affidavit of the respondent of 7 March 2008.  The respondent later filed a further affidavit which was sworn on 14 May 2008, in which he exhibited a further draft of the proposed amended defence which he relied upon in substitution for the previous document.  The matters came before me on 16 June 2008 for directions, when I listed both notices of motion for hearing today.  At that stage I said that I would proceed to hear the application for further and better particulars and then follow that by hearing the application by the respondent to amend his defence.  The applicants made it clear, at a very early stage, that both applications would be resisted.

3. On 20 August they filed submissions opposing the respondent’s application for leave to amend the further amended defence.  I had not asked them to file submissions in relation to the application for further and better particulars in view of the previous hearing of the matter.  When the matter was called on before me this morning, the respondent advised me that he had since receiving the applicants’ submissions consulted with his pro bono legal adviser in relation to the matters raised.  He said that he had previously spoken to his pro bono legal adviser in early July 2008 and sought advice in relation to whether the proposed amended defence was appropriate in view of some remarks which had been made by junior counsel for the applicants at that stage.  He told me this morning that he had now received advice that he ought to respond to some of the criticisms made by the applicants of the proposed further amended defence.

4. The respondent also told me that he had been advised that he should not pursue the application for further and better particulars contained in the notice of motion of 8 April 2008 but revert to the previous request for particulars which had been heard on 17 December 2007.  For those reasons, the respondent advised me that he did not wish to pursue either of the notices of motion which were listed for hearing today.  As I explained to him, during the hearings of the notices of motion the proceeding has been delayed by reason of these applications which are abandoned this morning.  The respondent has indicated, I think, that he intends to make a further application to amend his defence in accordance with advice which he has more recently received.

5. It seemed to me that there was no answer to Mr Wells’ QC request that both the notices of motion should be dismissed and that the respondent should pay the applicants’ costs on an indemnity basis.  There is no reason why the applicants should have been put to the costs which they have.  They expected, until Mr Bunn made his announcement, that the matters would proceed today and they had readied themselves for that purpose.  Mr Bunn has previously made a request for further and better particulars and he has previously made a request to amend his defence.  For those I reasons, I dismissed the notices of motion and ordered that the respondent pay the applicants’ costs on an indemnity basis.  The applicants now seek, as I have said, that I make a further order under O 62 r 3 entitling the applicants to have their bill of costs taxed prior to the disposal of the principal proceeding.

6. It seemed to me that this is one of those cases where it would be appropriate to make an order of that kind.  The two notices of motion have delayed the progress of this matter which has already been substantially delayed, as I said, by reason of interlocutory skirmishes.  There is no reason why the applicants should not be entitled to tax their costs prior to the principal proceedings being disposed of especially in view of the fact that the respondent has said that he still intends to make a further application to amend his defence which, of course, he may make, but which will further delay the hearing of the matter.  For those reasons, such an order would be appropriate and I make an order that the applicants be entitled to have a bill of costs taxed in relation to the order for costs made today, immediately and prior to the principal proceeding being disposed of.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       9 September 2008

Counsel for the Applicants:	Mr J Wells QC
Solicitor for the Applicants:	Kelly & Co
Counsel for the Respondent:	The Respondent appeared in person

Date of Hearing:	2 September 2008
Date of Judgment:	2 September 2008