Omiros Pty Ltd v PM Developments Pty Ltd - [2004] FMCA 661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OMIROS PTY LTD v PM DEVELOPMENTS PTY LTD & ORS

[2004] FMCA 661

PRACTICE AND PROCEDURE – TRADE PRACTICES – Application for extension of time to comply with orders – appropriateness of communication with Court by interstate practitioner when solicitors on record in the State where proceedings initiated – responsibility of practitioners to comply with orders and advise clients of timetable set by court.

COSTS – Party granted extension of time to pay costs.

Smith & Anor v Gannawarra Shire Council & Anor (2002) 4 VR 344

Applicant:

OMIROS PTY LTD (ACN 007 125 466)

Respondents:

PM DEVELOPMENTS PTY LTD
(ACN 099 606 827), MIMI FRANCES MACPHERSON and ANDREW PAPADOPOULOS

File No:

MLG 1331 of 2003

Delivered on:

17 September 2004

Delivered at:

Melbourne

Hearing Date:

17 September 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr E Vadarlis

Solicitors for the Applicant:

Vadarlis & Associates

Counsel for the Respondents:

Mr J Forrest

Solicitors for the Respondents:

Provestlaw

ORDERS

The orders of 29 April 2004 be varied as follows:
(a)Order 3 delete "16 July", insert "1 October";
(b)Order 4 delete "30 July", insert "15 October";
(c)Order 5 delete "30 July", insert "15 October";
(d)Order 6 delete where it appears "20 August" and insert "25 November".
The notice of motion be adjourned for further hearing at 9.45 am on
17 December 2004.
The respondents shall file and serve any amended defence on or before 1 October 2004.
Pursuant to section 45 of the Federal Magistrates Act, I declare that it is appropriate in the interests of the administration of justice to allow discovery.
Each party shall file and serve a list of documents by 29 October 2004 with inspection to occur by 5 November 2004.
The trial shall proceed on affidavit evidence with the affidavit of each witness, if adopted, to stand as the evidence-in-chief of the witness.
The applicant shall file and serve any further affidavits to be relied upon on or before 23 January 2005 and not otherwise, except with the leave of the court.
The respondent shall file and serve any further affidavits to be relied upon on or before 25 February 2005 and not otherwise, except with the leave of the court.
If either party requires a deponent to an affidavit to be made available for cross-examination, that party shall notify the other in writing within seven days of receipt of the relevant affidavit.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
The respondents shall pay the applicant's costs fixed in the sum of $1500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 133 of 2003

OMIROS PTY LTD (ACN 007 125 466)

Applicant

and

PM DEVELOPMENTS PTY LTD (ACN 099 606 827), MIMI FRANCES MACPHERSON and ANDREW PAPADOPOULOS

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by the respondents to further extend time for compliance with orders made by the court on 29 April 2004. The application in this matter was filed on 27 November 2003 and was subject to orders of the court on 12 December 2003 when the matter was adjourned. It is not necessary to trace the history of the matter in further detail, save that it was noted that the respondents had filed an affidavit on 19 January 2004 and that when the matter was before the court on 29 April 2004 a cross-claim by the respondents was foreshadowed and a timetable imposed on that day. The timetable provided for the respondents to file and serve any cross-claim, together with any affidavits in support, on or before 16 July 2004.
The orders of the court that day also provided for any request for further and better particulars of the applicant's amended statement of claim to be filed and served and for those details, that is, the further and better particulars, to be provided by the applicant on or before 15 June 2004. That in fact has occurred.
What had not occurred, however, is the filing and serving of a cross‑claim by the due date. The respondents have sought a 21-day period of time within which to file the cross-claim, that is, the 21-day period from today, and by doing so has sought to extend the time significantly from that time imposed by the court in April 2004. In support of that application reliance has been placed upon two affidavits of Andrew Papadopoulos, the first sworn 9 September 2004 and a second unsworn affidavit. Subject to an undertaking to provide particulars of jurat this day, I accepted that was sworn on 16 September 2004. Both affidavits which are relied upon in this extension application. Indeed, it should also be noted that as a result of orders made when the matter was before the court on 10 September 2004 the applicant has filed and served an affidavit of Omiros Emmanouilides which was sworn 15 September 2004.
For present purposes it is not necessary for me to recite the details in terms of the chronology much further. I do adopt and apply the general principles that should be followed in a matter of this kind referred to by Winneke P of the Court of Appeal in Victoria in the matter of Smith & Anor v Gannawarra Shire Council & Anor (2002) 4 VR 344, and to the extent it is necessary refer to and adopt what the President said in that case which appears in his judgment at page 352 to 353 as follows:-
“In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial processes, the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position, within the bounds of reason, to present his or her case to the court in its best light and in an orderly fashion. As Dawson, Gaudron and McHugh JJ pointed out in Queensland v J L Holdings Pty Ltd in matters like this ‘Justice is the paramount consideration’. In other words, courts should be astute to ensure that expediency is not permitted to usurp justice by refusing to grant an adjournment at the instance of a party in circumstances which will significantly interfere with the ability of that party to present his or her case effectively.”
Having set out that principle, it is clear to me, however, that as part of case management a court is entitled to rely upon practitioners on record to ensure that time limits are complied with, or if not complied with, that there is some reasonable basis or excuse provided to the court, particularly where liberty to apply is granted, as to why those time limits have not been complied with.
In this case there is the curious assertion in affidavit material by Mr Papadopoulos that he was -
aware but did not precisely understand that I ought to have filed a counterclaim in July 2004. When I became aware of the seriousness of the court's timetable I instructed experts to provide a report to my Queensland solicitor on the matters appertaining to my proposed counterclaim.
He goes on to refer to work commitments and other reasons why he has not complied with the order.
In the further affidavit sworn yesterday and relied upon this day the deponent refers to the applicant's affidavit and states that he had been orally told of a timetable some months earlier but -
at no time did I see it in black and white, nor did I appreciate that it operated as an order of the court.
It is clear from an examination of the court file that the order made by the court on 29 April 2004 was prepared and sealed by the court and forwarded to the respective solicitors on record. The solicitor on record for the respondents is a Victorian-based solicitor. There is no evidence from that solicitor that he could not forward to his Queensland clients or solicitors apparently acting for and on behalf of the clients in Queensland a sealed copy of the order made by the court. It would be surprising if he did not forward a sealed copy of the order of this court.
In any event, it is equally surprising that on the court file there appears to be correspondence from Queensland solicitors directly to a registrar of this court giving some indication as to whether or not those solicitors would be present or not present at a mediation that had been scheduled by the registrar. I make two observations about the chronology thus far. The first is that it is clearly undesirable and inappropriate and indeed a somewhat cavalier approach of solicitors on record to simply fail to provide to this court any or any reasonable basis upon which it could be suggested a sealed copy of this order forwarded by this court to the solicitor has not been properly, clearly communicated to the client. In my view, that is a serious act of omission.
Secondly, it is inappropriate for solicitors in one state, not on record in this court proceeding, to purport to communicate with any officer of the court in relation to timetabling or otherwise to interfere with the due process of this court. Where solicitors interstate know that there are solicitors on record in this State acting for and on behalf of the parties it is the solicitors on record who should directly communicate with the court. In my view, those matters are of serious concern to the court and I will direct that the reasons for the decision be transcribed and forwarded to the respective parties. It will be a matter for the court as to whether the matter should be then referred to the Law Institute or Law Society.
I am satisfied on the material before me that there is at least some basis upon which the court should grant a further extension of time, but not of the kind sought by the respondents. In reaching that decision I do so primarily as a result of the principles of law to which I have referred to from Winneke P and not necessarily based upon the substance of the affidavit material before me which, in general, I find to be unsatisfactory and unconvincing. Nevertheless, it would be prejudicial, in my view, to the parties if I were not to accede to a short extension of time and to otherwise make orders for the proper management of this application.
In the circumstances, as I have indicated to counsel, I am prepared to make orders which adjust the timetable in this matter and which, to some extent, accommodate this application for extension of time. It seems to me that can be accommodated without prejudicing the final hearing date which has already been fixed in this matter for 11 April 2005. It will be clear from what I have said in this decision that it is now incumbent upon those advising all parties, and particularly the respondents, to ensure that copies of orders are forwarded to the parties immediately and in the discharge of the solicitor's duty it is essential that clients are kept properly and fully informed of orders of the court and timetables imposed by the court.
In the present case an objection had been raised in relation to certain paragraphs of the affidavit of Mr Emmanouilides to which I referred to earlier. In particular, paragraphs 16 and 17 of the affidavit are challenged on the basis they purport to refer to what are described as negotiations or comments made in the spirit of negotiations and on that basis are claimed to have been without prejudice discussions. On the material before me I am not able to draw that conclusion, but rather draw the conclusion that this was a telephone conversation which occurred at the behest of the respondent and is not a conversation which could properly be described as one that occurred in the context of seeking to advance the issue of settlement, but rather involved other issues. In any event, despite that ruling, it is not necessary for me to rely upon those two paragraphs in deciding to extend the time in this application.
For all those reasons the timetable will be altered.
In this matter it is my view that it is appropriate that a costs order should be made, certainly for this day. It is true that an application of this kind, as submitted by the applicant, there has been an indulgence in a sense granted to the respondents. So much is conceded by the respondents. It is equally true, as the respondents submit, that other matters have been dealt with in this case which would have been dealt with in the normal course of directions hearing. The applicant had claimed costs both of the previous hearing day of 10 September and this day which totalled $1820 plus $685 which would have been a total of $2505.
It is submitted on behalf of the respondent that at least part of that, that is, the previous day, was an expense which would have been incurred in any event. Doing the best I can on the material before me it seems that whilst part of today has been used by way of directions which assists both parties, it is clear to that extent that costs would normally be in the cause. Having regard to my reasons for decision in allowing the extension and the what I would describe as unsatisfactory nature of the material placed before the court on behalf of the respondents seeking the indulgence, it is appropriate I should make an order for costs against the Respondents and that I should fix that amount in the sum of $1500.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 17 September 2004