Pacific Technologies (Australia) Pty Limited v State of Victoria

[2009] FCA 297

FEDERAL COURT OF AUSTRALIA

Pacific Technologies (Australia) Pty Limited v State of Victoria [2009] FCA 297

PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LIMITED v THE STATE OF VICTORIA

VID 1171 of 2007

JESSUP J
20 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1171 of 2007

BETWEEN: PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LIMITED
Applicant

AND: THE STATE OF VICTORIA
Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	20 MARCH 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.If the applicant has filed and served its Further Amended Statement of Claim by 4.00 pm on 27 March 2009, the proceeding be listed for directions at 9.30 am on 6 April 2009. 

2.If the applicant has not filed and served its Further Amended Statement of Claim by 4.00 pm on 27 March 2009, the proceeding thereupon be dismissed pursuant to Order 35A rule 3(1)(a) of the Rules of Court, and in that event, save to the extent previously dealt with in orders made by the court, the applicant pay the respondent’s costs of the proceeding, including reserved costs.

3.The applicant pay the respondent’s costs of today.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1171 of 2007

BETWEEN: PACIFIC TECHNOLOGIES (AUSTRALIA) PTY LIMITED
Applicant

AND: THE STATE OF VICTORIA
Respondent

JUDGE:	JESSUP J
DATE:	20 MARCH 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The situation which has developed in relation to this proceeding is explained in the affidavit of Paul Edward Zawa, affirmed on 19 March 2009. 

2. On 17 October 2008, I struck out four important paragraphs of the applicant’s then Amended Statement of Claim and gave the applicant leave to re-plead on or before 14 November 2008.  On 10 November 2008, I made orders by consent that the applicant file and serve a Further Amended Statement of Claim on or before 4.00 pm on Friday, 6 March 2009.  As will be apparent from those orders, the applicant had not taken up the leave to re-plead, which was granted to it on 17 October 2008 and, in place of that leave, the parties consented to orders that the applicant be required to serve a Further Amended Statement of Claim by 6 March 2009.  That was not done and still has not been done. 

3. In the circumstances, the applicant is in default pursuant to O 35A r 2(1)(a) of the Rules of Court.  I have been asked by the respondent this morning to make a self-executing order for the dismissal or stay of the proceeding under O 35A r 3(1)(a) by reference to a short further opportunity which the applicant should be given to file the pleading which it ought to have filed by 6 March 2009 at the latest.

4. The court is not without explanation for the applicant’s default.  The applicant’s circumstances are explained in Mr Zawa’s affidavit.  I take those circumstances into account in the exercise of my discretion under O 35A.  They are not so much the circumstances of the applicant itself, but the circumstances of the gentleman who appears to be the main individual involved in the operation of the applicant, Mr Allardyce.  He has informed the respondent and the court that, shortly after I made the orders on 17 October 2008, the solicitor by whom he had then been represented withdrew, and the applicant has been unable to secure further legal representation.

5. Pursuant to the Rules of Court, a company such as the applicant cannot sue or participate in proceedings save by its solicitor.  None of the material which I have been shown gives any cause for optimism that the applicant will secure the services of a solicitor in anything like the time that would be regarded as reasonable, given the history of this matter.  Mr Allardyce himself is obviously very concerned about the unrepresented state of the applicant, and has put before the court information, including medical certificates, from which I accept that he is not in a fit state at present to prosecute these proceedings on behalf of the applicant, even had the Rules of Court permitted him to do so.

6. In the circumstances, it is, in my opinion, quite unrealistic to expect the respondent to continue to attempt to deal with this proceeding when the applicant itself is unrepresented and seemingly incapable of producing a pleading which would articulate its claims in a conventional way.  It is not as though the proceeding is a small matter, or a matter which concerns personal affairs.  It is apparently a very significant patent claim in which very large sums of money would be sought by the applicant.  I consider it to be neither fair nor just that the respondent should have those claims hanging over its head, as it were, when the applicant’s own state of representation, and its ability to articulate its claims, is clearly so severely compromised by its inability to have legal representation, and indirectly by Mr Allardyce’s personal circumstances, regrettable though they obviously are. 

7. I will give the applicant a short opportunity to file its pleading, although I do so without any great optimism that it will avail itself of that opportunity.  Save for that, I consider that the respondent has made good its claim for an order disposing the proceeding under O 35A of the Rules of Court.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       31 March 2009

Counsel for the Applicant:	The applicant did not appear.
Counsel for the Respondent:	Mr Maryniak
Solicitor for the Respondent:	Minter Ellison

Date of Hearing:	20 March 2009
Date of Judgment:	20 March 2009