Prestige Office Machines and Systems Pty Ltd v Sharp Corporation of Australia Pty Ltd

[1988] FCA 641

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G144 of 1986
GENERAL DIVISION	1

BETWEEN: PRESTIGE OFFICE MACHINES & SYSTEMS PTY LTD

Applicant

AND: SHARP CORPORATION OF AUSTRALIA PTY LTD

First Respondent

AND: HIROSHI IT0

Second Respondent

AND: RAYMOND HOWARD PELDAN

Third Respondent

AND:  JAMES G R A M AMBROSE TUCKER

Fourth Respondent

MINUTES OF ORDER

PINC S ORDER: MAKIN JUDGE J

DATE OF ORDER:	19 OCTOBER 1988
WHERE MADE:	BRISBANE
THE COURT ORDERS	THAT:

of the notice of motion, to be taxed.

1.    on the notice of motion the principal applicatlon

be struck out;

2 .    the applicant pay the respondents’ costs of and incidental to the proceedings, including the costs

IN THE FEDERAL COURT OF AUSTRALIA 1

QUEENSLAND DISTRICT REGISTRY 1 QLD G144 Of 1986

DIVISION GENERAL )

BETWEEN: PRESTIGE OFFICE MACHINES & SYSTEMS PTY LTD

Applicant

AND:  SHARP CORPORATION OF AUSTRALIA PTY LTD

First Respondent

AND: HIROSHI IT0

Second Respondent

AND: RAYMOND HOWARD PELDAN

Third Respondent

AND:  JAHES G R A M AHBROSE TUCKER

Fourth Respondent

PINCUS J. 19 OCTOBER 1988

EX TENPORE REASONS FOR JUDGNENT

In this matter one must feel some sympathy towards the

applicant which may think ltself to have a genuine suit: however,

the circumstances which have arisen seem to me to make it unfair

to let the proceedings continue. The motion which is brought

relies upon an order which I made on 5 November 1986. Although

the terms of that order have not been formally proved (the order

does not seem to have been taken out), it is common ground that it

contemplated the delivery of a reply on or before 2 4 December 1986, and thereafter discovery and inspection. It is also common

.' 2.

ground that no reply was delivered. Mr	Stephens, who has argued
the case for the applicant today, says that under the rules, if	no

reply is delivered, then certain consequences ensue; he has

suggested, as I understand the argument, that the applicant's

failure to deliver a reply may be excused, or may not produce the

consequences for which Mr O'Donnell contends, because the

applicant might have determined simply to let the rules operate.

As Me O'Donnell says, the correspondence is against

that. On the face of the matter, there was an order for reply and

it was not complied with. The non-compliance with the order for

reply is, however, but the base of the present application,
because if there was nothing else in the matter, the Court would
simply give further tlme for the delivery of the reply and the

proceedings would go ahead.

The difficult question in the case is whether or not, in

view of the evidence, which is uncontradlcted, that the applicant

wants to proceed with the case, that course would be taken, or

rather the proceedings should be struck out. I have come to the

opinion that the proceedings should be struck out, and the

circumstances which seem to	be most relevant in determining to do
that are as follows.

First of all, the statement of claim concerns matters

which were, at the date that it was delivered, in large part

already fairly old. The statement of claim was delivered	in
October 1986, two years ago, and	it alleged that breaches of
provisions of the Trade Practices Act	1974 going back to 1979 had

..

. 3 .

occurred. To take an example - I hope not unfairly - from the

statement of claim, the allegation in para.7 is that in about

August 1979, the first respondent was involved in or made a

contract or arrangement with the applicant and another entity, a

provision of which was that certain arrangements would take place

between the parties, and para.9 says that that provision had the

purpose, or did have, or was likely to have, the effect of

substantially lessening competition.

A more up-to-date allegation is in para.16 which is

perhaps best quoted in full:

"In and from about 1981 the First Respondent, by its

agents, offered to supply su plied and the

Applicant	with	goods,	namely Sharp Copiers on the
condition that the Applicant	would	not	re-supply

the said goods to particular persons or classes of

persons namely to government departments."

Paragraph 17 says:

"The conduct of the First Respondent referred to in

the preceding paragraph ereof had the purpose OK

was likely to have the effect of substantially

lessening competition in the said retail market for

Sharp Copiers."

At the end of the statement of claim, the case diverges

from those sorts of allegations, and it alleges that from prior to

August 1980 - this is para.28 - the first respondent commenced monitoring the performance of the company, and it is said that it gave advice and made representations. Those are said to have been negligent and the representations were also said to have been

..

. 4.

false and misleading.

Then, the statement of claim moves to allegations

against two receivers who were said to have been appointed in

1983, and they are said to have been negligent in carrying out

their duties in that, for example, they failed to "make a proper assessment of the financial position of the Applicant," (that is in paragraph 40(a)) and in (c) carried on business at a loss and

matters of that sort.

Now, this case seems to concern matters principally

occurring in 1979 and 1984 which are of some complexity. when the

proceedings were started, the facts were already getting a bit

old. The statement o f claim refers to the relief specified in the

application, and that is damages under various headings for

breaches of ss.45, 45A. 46, 47, 48, 49 and 52 of the - Trade

Practices Act; damages for negligence; damages for breach of

contract; damages for trespass and conversion.

Insofar as the claims rely upon the Trade Practices Act,

there is a time limit which is in s . 8 2 ( 2 ) , namely three years.

There may be arguments as to the effect of the time limit in such

a case as this, and not all the matters complalned of occurred

more than three years before the application was filed.

Nevertheless, one is obliged to have regard to the

evidence of statutory policy that these cases will come on within

some reasonable time after the events to which they relate, rather

than be exhumations of ancient commercial history.

In the circumstances, prima facie, the application

should be struck out. There was a period of about two years

during which nothing happened insofar as the progress of the case

was concerned, and attempts were made by the respondents to get

some details of the statement of claim, which were obviously

necessary, to find out what was happening about it. They did not

simply sit back. After some months, they desisted from further

effort. What was in fact happening was that the applicant was

trying to get some money from legal aid, and he apparently did not

have any success in that.

He changed solicitors from his original firm to a firm called Hartley H011 and Henderson. Hartley H011 and Henderson do not seem to have done a great deal, but, eventually, the applicant

got rid of them and got his present firm, Alex Mackay & Co. They had difficulties getting the file off Hartley H011 and Henderson, and, ultimately, a lien was claimed. HT Stephens implies that the

delay is not wholly the applicant's fault. It is, to some extent,

to be laid at the feet of his solicitors - not his present

solicitors, but previous solicitors. He also polnts to the fact

that the applicant's lack of money has had an adverse effect on

his prospects of pursuing the matter expeditiously.

All that having been said, it really seems to me to be

clear enough that the proceedings should be put to an end. They

have now become quite stale. If the Court adopts the policy that

impecunious applicants may delay for a year or two O K three

without any prospect of that affecting their case then many cases

. J c '.

could be delayed, because we have many people in this Court, as

other courts do, who have a lot of trouble financing their

litigation. It seems to	me, as I said to Mr Stephens during the
hearing, that the proper solution to the problem is partly	a
question of Court policy.	Is the Court to let actions go to sleep
for years and be revived when	it suits the applicant, or must they

be pursued with reasonable expedition, on the basis that they will

bb struck out, in general, unless so pursued.

It seems to me in the interests of the community as a

whole and the litigants in particular, that the policy be adopted,

which has behind it ample authority, that respondents should not ordinarily be any further bothered with litigation after default

is made by applicants and long continued. There will always be

exceptions to that general rule, but this case does not seem to	be
one that should constitute an exception. Therefore, on the notice

of motion, the principal application will	be	struck out with
costs, including the costs of today's motion.

f certify that this and the5 preceding

are a true copy of the reasons for

ludlment hcretn of His Honour

Mr. Justtce Pincus