Metroplaza Pty Limited v Girvan NSW Pty Limited (in liquidation)

[1992] FCA 1006

1006 1q2-

JUDGMENT NO. .m.m.meaaammasae . * * a m a * u ~ .

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 5 of 1992

1

GENERAL DIVISION )

BE!CWEEN:  METROPLAZA PTY LIMITED

Applicant

AND:  GIRVAN NSW PTY LIMITED (IN
LIQUIDATION)

First Respondent

C.C. (NEW SOUTH WALES) PTY	,.	,
LIMITED (IN LIQUIDATION) formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY LIMITED

Second Respondent

LEIGHTON CONTRACTORS PTY

LIMITED > -

Third Respondent

HOLLAND STOLTE PTY LIMITED I

Fourth Respondent ! t :

THE MASTER BUILDERS	I %
ASSOCIATION OF NSW	!-

Fifth Respondent

l .:

AUSTRALIAN FEDERATION OF

CONSTRUCTION CONTRACTORS I

Sixth Respondent

i

JOHN CUNNINGHAM i

Seventh Respondent	I '
l

:

JUDGE MAKING ORDERS:  FOSTER J

DATE :	12 NOVEMBER 1992	I
I

PLACE :	SYDNEY	12 JAN 1993	l
l

FEDPUL WRT OF

AUSIIWIA

-1

M I N U T E OF ORDERS

(This is a minute of all orders made by his Honour on 12	l
November 1992, including those not related to the specific	!:
subject matter of these extempore reasons.)	: r
i

THE COURT ORDERS THAT:

1.   The orders sought in the notice of motion filed by the applicant filed 6 November 1992 be made, with the alterations detailed in these reasons and amendments made to the file copy of the motion;

2.   The costs of the motions of the third and fourth respondents filed 12 October 1992 and 13 October 1992 respectively are to be those respondents' costs in the cause;

3.    The access order in relation to subpoenaed documents previously made be widened except for that document to be identified and extracted by the solicitor for the third respondent and placed in an envelope marked "privileged" on the basis that it will be the subject of a motion for privilege;

4.  The orders in the short minutes of order submitted by counsel for the Commonwealth be made;

5.  The matter be placed in the long matters callover before Sheppard J on 1 December 1992;

6.   Liberty to approach my Associate or the Registry to obtain hearing dates for the outstanding interlocutory matters be granted to the relevant parties;

7 .    Liberty to apply generally be granted.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 5 of 1992
GENERAL DIVISION	)

BETWEEN:  METROPLAZA PTY LIMITED

Applicant

AND :  GIRVAN NSW PTY LIMITED (IN
LIQUIDATION)

First Respondent

C.C. (NEW SOUTH WALES) PTY LIMITED (IN LIQUIDATION) formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY LIMITED

Second Respondent

LEIGHTON CONTRACTORS PTY

LIMITED

Third Respondent

HOLLAND STOLTE PTY LIMITED

Fourth Respondent

THE MASTER BUILDERS

ASSOCIATION OF NSW

Fifth Respondent

AUSTRALIAN FEDERATION OF

CONSTRUCTION CONTRACTORS

Sixth Respondent

JOHN CUNNINGHAM

Seventh Respondent

CORAM:	FOSTER J
DATE :	12 NOVEMBER 1992
PLACE :	SYDNEY

REASONS FOR JUDGMENT

(Extempore)

HIS HONOUR:	A document has been put before me which is
simply a notice of motion for the making of further orders.	I

have heard argument from all concerned about it and I am

indebted to counsel for their thoughtful submissions. I

approach the matter on the basis that nothing a court can do

in a case such as this can be 100 per cent effective or 100

per cent appropriate. The Court can only do its best to steer

the litigation on a path which will produce ultimately, it is

to be hoped, a just result and which in the meantime appears	l
I-
to be a fair path for all parties concerned in the	I L
circumstances.
I understand that a regime regarded obviously as appropriate after considerable thought and argument was put in place in this case, and the parties have operated within the framework of that regime, and a deal of affidavit evidence has been produced. The circumstances of the case are such, however, in my view, that it is appropriate, whilst acknowledging the efficacy of that regime at the time when it was introduced, to make alterations which will preserve the good results that that regime has already achieved and not
waste any of the material that has come into existence as a result of its implementation. However, I consider that it is	appropriate at this stage to make alterations in light of
circumstances which I perceive to have changed.
I propose to make the orders which are sought with the exception of the thlrd. Before I do so, however, I should indicate that I propose to stand over the motions to strike out the applicant's claim to the actual hearing of the matter. They can remain on foot and be utilised in those proceedings if it seems appropriate within the confines of the ordinary procedures appropriate to the hearing.
There are outstanding some other motions. They have been put to the Court as being of a short interlocutory nature. In my view, having regard to the fact that a hearing date for this case cannot be fixed until fairly well into next year, it is in those circumstances appropriate that the matter be placed in the long matters callover on Tuesday, 1 December 1992, notwithstanding that those matters will at that point of time be undisposed of. There seems no reason to assume they cannot be disposed of expeditiously in the new year without their disposal influencing the allocation of a hearing date.
I propose to make the orders as asked with some addition and alteration resulting from the submissions that have been put to me. I make the orders as asked except that in relation to order 2, paragraph 1, I add after the words
evidence becomes available to that party and in any event".	"each party shall" the words "as soon as practicable after the
So that the first line will read:

"Each party shall as soon as practical or after the evidence becomes available to it, and in any event, not less than 28 days before the date fixed for

hearing. "

As to paragraph 2 (e) , I am satisfied after argument

has been put to me that the word "other" should be struck out

!

where it appears before the words "party". As to paragraph	1 .
I
3(a), I am satisfied to make the alteration that was suggested, and I strike out the words "14 dates" and

substitute the words "21 days". I do not make order 3. t .

However, I merely remind the parties that mediation facilities	,
I .
are available in this court.
I -
,.
i
I have also heard argument as to the adduction of oral evidence at the hearing. The respondents have sought that right. The applicant also seeks it. The cross- respondent has, as I understand it, opposed it. I think that in view of the nature of the orders that I have made, and because of the nature of the case, it is appropriate that parties be not precluded in advance by restricting evidence to be given in this case to evidence which is to be notified in advance in the manner contemplated and prescribed by the orders that I have so far made.
It must be borne in mind, however, that the late adducing of oral evidence in a case can produce unfortunate
results in terms of surprise applications for adjournment,
perhaps lengthy periods of adjournment, which create problems for the parties and for the Court. In this situation, quite obviously, a trial judge who is called upon to exercise his discretion would be very careful in exercising discretion and favour of granting leave to adduce oral evidence.
It is a matter, however, where a trial judge is placed in a far more advantageous position to consider the appropriateness or otherwise of granting leave, than has a judge simply dealing with a matter at a directions hearing and doing his or her best to envisage problems that may or may not arise, and situations where it may or may not be that the justice of the case would require specific orders or specific grantings of leave.
I think the matter should be left open, on the basis that the parties be granted leave to adduce oral evidence at
the case, providing that the trial judge grants leave for that
to be done, and that a party reasonably anticipating that such	.
leave will be sought, should give notice to all other parties that it anticipates, or that it will be seeking such leave, with some indication so far as is practicable of the evidence that it might be seeking to adduce in a purely oral form. Such evidence, of course, would not be evidence which is already referred to in any written documents exchanged between the parties.
To make clear what I have just said, it is very possible in a case of this kind, that an application to use a witness statement as evidence-in-chief, will be acceded to by the Court only in respect of portions of that statement. It may be that the trial judge, and it is a matter for him or her, will feel that it will be better assisted by taking the evidence of a witness on a crucial aspect in full oral form from the witness-box, and not simply by the use of a written statement of that portion of the evidence being tendered.

I grant general liberty to apply, which I would entreat the parties not lightly to exercise, but if situations of real difficulty arise the Court is always available to attempt to assist.

I certify that this and the preceding five

(5) pages are a true copy of the reasons for judgment herein of the Honourable M r Justice M. L. Foster.

Associate: L22

Date:  12 NOVEMBER 1992

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:  D. J . HAMMERSCHLAG

INSTRUCTED BY:  ROSENBLUM & PARTNERS

COUNSEL FOR THE FIRST RESPONDENT: NO APPEARANCE

COUNSEL FOR THE SECOND RESPONDENT: R. DUBLER

INSTRUCTED BY:  CORRS CHAMBERS WESTGARTH

COUNSEL FOR THE THIRD RESPONDENT: C.P. COMANS

with I.E. DAVIDSON

INSTRUCTED BY:  ROBIN LEE MAXAM

COUNSEL FOR THE FOURTH RESPONDENT: M.R. ELLICOTT

INSTRUCTED BY:  ADDISONS

COUNSEL FOR THE FIFTH, SIXTH AND SEVENTH RESPONDENTS:

J.A. SIMPKINS

INSTRUCTED BY:	COLIN BIGGERS & PAISLEY
COUNSEL FOR THE CROSS RESPONDENT: B. WALKER
INSTRUCTED BY:	DUNHILL MADDEN BUTLER
COUNSEL FOR THE COMMONWEALTH:	D. MARTIN
INSTRUCTED BY:	AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING:	12 NOVEMBER 1992
DATE OF JUDGMENT:	12 NOVEMBER 1992