National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 4)
[2006] FCA 1851
•11 DECEMBER 2006
FEDERAL COURT OF AUSTRALIA
National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 4) [2006] FCA 1851
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER
NSD 2596 OF 2005GRAHAM J
11 DECEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2596 OF 2005
BETWEEN:
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First ApplicantMAGGIE YEUNG LO
Second ApplicantHARVEY HUI OUYANG
Third ApplicantAND:
NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First RespondentJACK J MOLLER
Second RespondentCARL MOLLER
Third Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
11 DECEMBER 2006
WHERE MADE:
SYDNEY
THE COURT:
1.Grants leave to the applicants to file in Court an Amended Notice to Respondents to Answer Interrogatories dated 6 November 2006.
2.Grants leave to the applicants to file in Court a Notice of Motion dated 11 December 2006 returnable instanter and an affidavit in support of Alice Chen affirmed 11 December 2006.
3.Orders that the Notice of Motion filed 11 December 2006 be dismissed.
4.Orders that there be no order as to costs in respect of the Notice of Motion filed 11 December 2006.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2596 OF 2005
BETWEEN:
NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First ApplicantMAGGIE YEUNG LO
Second ApplicantHARVEY HUI OUYANG
Third ApplicantAND:
NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First RespondentJACK J MOLLER
Second RespondentCARL MOLLER
Third Respondent
JUDGE:
GRAHAM J
DATE:
11 DECEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The hearing of these proceedings commenced on Monday, 4 December. The trial is now in its sixth day. In the week preceding the commencement of the hearing the solicitor on the record for the respondents ceased to act, his instructions having been withdrawn. The hearing has proceeded in the absence of the first respondent. An application was made by the third respondent at the commencement of the hearing for leave to represent the first respondent. That application was refused. Each of the second and third respondents have appeared in person.
The Notice of Appearance filed on behalf of the respondents by their former solicitor provided an address, a telephone number, a fax number, and an email address. There was no notation on the form of appearance in accordance with Form 12 or in similar terms to the requirements of Form 12 authorising documents in the proceedings to be served by sending them to the facsimile number specified in the Notice of Appearance.
As it transpires, interrogatories were administered on 6 November 2006. The form of administration is said to have been the transmission of an Amended Notice to Answer Interrogatories dated 6 November 2006 by facsimile on that day. Verified answers to the interrogatories were provided by each of the second and third respondents. The third respondent, who was identified in the answer as the second respondent, provided a series of answers which were verified on 27 November 2006 and which were apparently received by the applicants' solicitors on 28 November 2006. Answers from the second respondent verified by him on 29 November 2006 were apparently forwarded to the solicitors for the applicants on 29 November 2006.
During the course of the applicant's case the applicant tendered selected interrogatories and answers thereto in relation to the second respondent. Such of the tendered interrogatories and answers as were admitted into evidence became exhibit G and in the case of the third respondent such of the tendered interrogatories and answers thereto which were admitted into evidence became exhibit H. It would appear that no verified answers to interrogatories were provided by the first respondent.
At 3:43 pm on Friday, 8 December 2006, the fifth day of the trial, senior counsel for the applicants closed the applicants' case. The respondents embarked upon the presentation of their case on the fifth day of the trial, the affidavit of the second respondent being read at that time. At the commencement of the hearing on the sixth day of the trial the applicants, without making any application for leave to reopen their case, have sought to file a Notice of Motion returnable instanter seeking further answers to interrogatories from the first, second and third respondents.
Leave was granted to the applicants to file the Notice of Motion together with a supporting affidavit of Alice Chen, a solicitor in the employ of the solicitors for the applicant, affirmed today. Notwithstanding the failure of the applicant to serve the interrogatories strictly in accordance with Order 7 Rule 4(1) of the Federal Court Rules (‘the Rules’), I have been invited to deal with the question of service of the interrogatories said to have been administered on 6 November 2006 in accordance with Order 1, Rule 8 of the Rules which provides a general power in the Court to dispense with compliance with any requirements of the rules either before or after the occasion for compliance arises.
Were it necessary for me to do so I would be minded to waive compliance with the rules in respect of the service of the interrogatories on 6 November 2006 as I am satisfied that they came to the notice of the second and third respondents on or about that date and also accordingly came to the notice of the first respondent of which the third respondent was then the sole director.
I am not disposed to grant relief in accordance with the Notice of Motion. The applicants have had the advantage of the answers which were provided and relied upon selected answers to selected interrogatories in support of their case by tendering the documents which have become exhibits G and H.
It appears from the evidence contained in Ms Chen's affidavit that on or about 28 November 2006 exception was taken to some of the answers provided by the third respondent in his verified answers to interrogatories. A letter dated 28 November 2006, apparently faxed on that day to the then solicitor for the third respondent included a sentence reading:
‘… We reserve our clients' right to move the court to vacate the trial date, and for an order for costs thrown away, by reason of your failure to furnish answers at all and proper answers, and certainly not in time for counsel to deal with them in the process of trial preparation.’
A letter containing a similar sentence was sent by facsimile by the solicitors for the applicants to the former solicitors for the respondents on 30 November 2006. However, it is acknowledged that this transmission which took exception to answers provided by the second respondent was not sent until after the solicitors for the applicants had notice of the fact that the former solicitors for the respondent no longer had any part to play in the proceedings.
No application was made at the commencement of the hearing for further answers to be provided in respect of the interrogatories that had been administered. The most critical fact in my opinion is the closure by the applicants of their case at 3:43 pm on 8 December 2006. In my opinion it would be entirely inappropriate to now proceed to require any of the parties to address the interrogatories to which reference has been made whether because they were never addressed in the first place or because, in the applicant’s case they were insufficiently answered.
Accordingly, I order that the Notice of Motion filed 11 December 2006 be dismissed. I note that the time is now approaching 12:05 pm and I order that there be no order as to costs in respect of the motion, which has occupied the whole of the hearing time thus far today.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 15 February 2007
Counsel for the Applicants: S M Littlemore QC and A A Henskens Solicitors for the Applicants: Robert Yip & Co The first respondent did not appear. The second respondent appeared in person. The third respondent appeared in person. Dates of Hearing: 4, 5, 6,7, 8, 11 December 2006 Date of Judgment: 11 December 2006
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