Mg Distribution Pty Ltd and Ors v Khan and Anor (No.3)
[2006] FMCA 1585
•12 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MG DISTRIBUTION PTY LTD & ORS v KHAN & ANOR (No.3) | [2006] FMCA 1585 |
| COPYRIGHT – PRACTICE AND PROCEDURE – Costs – failure to comply with Rules in relation to a Notice to Admit – inadequacy of discovery – hearing date vacated – set off of costs payable by Respondent against previous costs orders in favour of Respondents. |
| First Applicant | MG DISTRIBUTION PTY LTD |
| Second Applicant | YASH RAJ FILMS PRIVATE LIMITED |
| Third Applicant | YASH RAJ FILMS INTERNATIONAL LIMITED |
| Fourth Applicant | YASH RAJ FILMS USA INC |
| Fifth Applicant | FILMKRAFT PRODUCTIONS (INDIA) PTY LTD |
| First Respondent: | SAEED KHAN |
| Second Respondent: | ABIDA KHAN |
| File number: | MLG 401 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr P.H. Wallis |
| Solicitors for the Applicants: | Choy Lawyers |
| Counsel for the Respondents: | Mr C.S. Ward |
| Solicitors for the Respondents: | Nath Lawyers |
ORDERS
The application be fixed for trial on 30 January 2007 at 10.15 am with an estimated hearing of three days.
The Respondents file and serve a further affidavit of documents on or before 26 October 2006 with inspection to occur on or before 1 November 2006.
Any dispute concerning discovery and/or particulars of the respondents' defence shall be determined at a further hearing on a date to be fixed upon request by either party.
The Applicants' costs of and incidental to the hearing of 4 October 2006 and this day and costs of and incidental to the vacation of the trial date be paid by the Respondents, with the costs to be set off by those costs which are outstanding payable by the Applicants to the Respondents as a result of other orders of this court.
Liberty to apply to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 401 of 2005
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant And
First Respondent ABIDA KHAN |
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicants have sought an order that the Respondents pay the costs of and incidental to orders made by this court on 4 October 2006 vacating the trial date together with the costs of and incidental to the hearing this day where the court has dealt with issues between the parties concerning, amongst others discovery and leave sought by the Respondents in relation to a Notice to Admit.
Although it is true that the Respondents have succeeded in persuading the Court to exercise its discretion to grant leave pursuant to Rule 15.31 of the Rules of the Court, it is also the fact that that leave is granted in a manner where it could be properly characterised as an indulgence in circumstances where, in my view, the explanation given for the failure to comply with the Rules in relation to the Notice to Admit was an explanation which was barely adequate, as set out in the affidavit of Mr Nath sworn 10 October 2006.
The deponent does not provide great detail as to what actually occurred, apart from it appearing that the Notice to Admit had been incorrectly filed, which I interpolate as being incorrectly filed on another related matter. It does not explain steps that were taken to correct the omission, apart from merely asserting the matter was not noticed until review, until late September 2006.
In addition, it is my view that the list of documents filed and served by the Respondents prima facie appears to be hopelessly inadequate and I have permitted the Respondents to file and serve a further affidavit of documents, and to that extent, the application by the Applicants has been successful.
The success in relation to that issue by the Applicants and the fact that it was the leave sought and granted to the Respondents which has permitted them to avoid being taken to have made admissions as a result of non‑compliance with the Rules, in my view, leads me to the conclusion that those factors combined with what appears on the material, to me, to be otherwise non‑compliance with orders made by the court previously, that is, non‑compliance by the Respondents largely of orders made by the court previously, leads me to conclude in the exercise of my discretion that it is appropriate to make an order that the Respondents pay the Applicants' costs of and incidental to the hearing of 4 October 2006, the hearing this day and vacation of the trial date.
I will however order that those costs be set off by outstanding costs ordered in favour of the Respondents against the Applicants.
The formal orders are as already announced in relation to Rule 15.31.
I shall further order formally that the application be fixed for trial on 30 January 2007 at 10.15 am with an estimated hearing of three days.
I will further order that, as I indicated earlier, the Respondents shall file and serve a further affidavit of documents on or before 26 October 2006 with inspection to occur on or before 1 November 2006.
As foreshadowed, I will order that any dispute concerning discovery and/or particulars of the Respondents' defence shall be determined at a further hearing on a date to be fixed upon request by either party.
I will further order that the Applicants' costs of and incidental to the hearing of 4 October 2006 and this day and costs of and incidental to the vacation of the trial date be paid by the Respondents, with the costs to be set off by those costs which are outstanding payable by the Applicants to the Respondents as a result of other orders of this court.
I will grant liberty to apply to the parties in relation to any matters arising out of these orders.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 October 2006
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