Norm Engineering Pty Ltd v Digga Australia Pty Ltd - [2006] FCA 190

FEDERAL COURT OF AUSTRALIA
Norm Engineering Pty Ltd v Digga Australia Pty Ltd [2006] FCA 190
PRACTICE AND PROCEDURE – Copyright proceedings – trial directions – failure to provide the report of an expert in accordance with the Directions Orders – application to adjourn the trial on grounds of prejudice in the conduct of the trial.
NORM ENGINEERING PTY LTD (ACN 010 799 943) v DIGGA AUSTRALIA PTY LTD (ACN 010 443 875)
QUD285 OF 2005
GREENWOOD J
8 MARCH 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD285 OF 2005

BETWEEN:
NORM ENGINEERING PTY LTD (ACN 010 799 943)

APPLICANT

AND:
DIGGA AUSTRALIA PTY LTD (ACN 010 443 875)

RESPONDENT

JUDGE:

GREENWOOD J

DATE OF ORDER:

8 MARCH 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The hearing dates for the trial of the proceeding from 20 to 27 March 2006 be vacated.

2.Leave granted to the Applicant to amend the Amended Statement of Claim in terms of the Further Amended Statement of Claim in the form exhibited to the letter from the Solicitors for the Applicant to the Solicitors for the Respondent dated 6 March 2006.

3.The Applicant is ordered to pay the Respondent’s costs of and occasioned by amendments made by leave to the Amended Statement of Claim in the form of the Further Amended Statement of Claim.

4.The costs of and occasioned by the vacation of the commencement of the trial of the proceeding on 20 March 2006 are reserved.

5.The Applicant is ordered to pay the costs of the Directions Hearing on 7 February 2006.

6.Either party is granted leave to apply to the Court on two days notice.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD285 OF 2005

BETWEEN:

NORM ENGINEERING PTY LTD (ACN 010 799 943)
APPLICANT

AND:

DIGGA AUSTRALIA PTY LTD (ACN 010 443 875)
RESPONDENT

JUDGE:

GREENWOOD J

DATE:

8 MARCH 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This proceeding is set down for trial from 20 March until 27 March 2006.
On 6 October 2005, consent orders were made dealing with pre-trial steps which included an order that the Applicant was to file and serve the statements of all lay witnesses and any expert reports upon which it intended to rely at trial no later than four weeks after completion of inspection of discovered documents. Some urgency attached to the completion of the various pre-trial steps in order to ensure that the matter could proceed to a hearing at the earliest opportunity. In fact, the trial of the action had been set down for hearing on 6, 7, 8 and 9 February 2006 but prudence at the Directions Hearing on 22 December 2005 suggested that the various interlocutory steps would not be completed within a time which would enable the trial safely to commence on 6 February 2006.
In order to avoid potential disruption to the trial, those dates were vacated on 22 December 2005 and the March dates were then allocated.
Inspection of documents was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 190
Decision Date: 8 MARCH 2006

CaseChat Overview and Summary

Norm Engineering Pty Ltd brought an action against Digga Australia Pty Ltd in the Supreme Court of New South Wales. The dispute centred on allegations of breaches of contract and associated claims arising from a contract for the supply of goods. The matter proceeded to a trial that was scheduled to commence on 20 March 2006. However, prior to the trial, the Applicant sought leave to amend its Statement of Claim, which resulted in a Further Amended Statement of Claim being filed. This necessitated a Directions Hearing on 7 February 2006.

The court was required to decide whether the Applicant should be granted leave to amend its Statement of Claim and, if so, whether the costs associated with the amendments and the consequent vacation of the trial dates should be borne by the Applicant. The Respondent opposed the amendments on the basis that they were an abuse of the court process. The Applicant argued that the amendments were necessary to address jurisdictional issues that had arisen.

The court granted the Applicant leave to amend its Statement of Claim, acknowledging that the amendments were necessary to address jurisdictional concerns. However, the court also ordered the Applicant to bear the costs of the amendments, the vacation of the trial dates, and the Directions Hearing. The costs of vacating the trial commencement were reserved for further consideration. The court recognised the need for flexibility in the management of court proceedings, but also emphasised the importance of managing costs effectively. The court also granted either party leave to apply on short notice, reflecting its willingness to address any further issues that might arise in the course of the litigation.

Orders

Orders of the court

1. The hearing dates for the trial of the proceeding from 20 to 27 March 2006 be vacated.

2. Leave granted to the Applicant to amend the Amended Statement of Claim in terms of the Further Amended Statement of Claim in the form exhibited to the letter from the Solicitors for the Applicant to the Solicitors for the Respondent dated 6 March 2006.

3. The Applicant is ordered to pay the Respondent’s costs of and occasioned by amendments made by leave to the Amended Statement of Claim in the form of the Further Amended Statement of Claim.

4. The costs of and occasioned by the vacation of the commencement of the trial of the proceeding on 20 March 2006 are reserved.

5. The Applicant is ordered to pay the costs of the Directions Hearing on 7 February 2006.

6. Either party is granted leave to apply to the Court on two days notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD285 OF 2005

BETWEEN:	NORM ENGINEERING PTY LTD (ACN 010 799 943) APPLICANT
AND:	DIGGA AUSTRALIA PTY LTD (ACN 010 443 875) RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	8 MARCH 2006
WHERE MADE:	BRISBANE