NOT FOR DISTRIBUTION
| :JI IDGMENT N ~ . | 51 | y 5 6 - - | . | .... "4 |
IN THE FEDERAL COURT OF AUSTRALIA )
)
| TASMANIA DISTRICT REGISTRY | ) T. Nos. G 2 and 3 of 1987 |
| ) |
| GENERAL DIVISION | ) |
| BETWEEN: |
| R . R . ANI2 S. M. POWELL PTI. LTD. | Applicant
(Respondent) |
and
| CAFIXE PTY. | LTD. | Respondent |
| (Applicant) |
NORTHROP J.
4 FEBRUARY 1988
HOBART
Ex TEMPORE REASONS FOR JUDGMENT
| There are listed for hearing today before | me | two |
| actions, namely, | T. No. G 2 of 1987 and T. No. G 3 of 1987. |
| In the first action the applicant is | R.R. | and S.M. | Powell |
| Pty. Ltd. ("Powell"), | and the respondent is Cafike Pty. Ltd. |
| ("Cafike"i, | trading as | the Port Arthur Cider Company; that |
| action was commenced on | 4 March 1987 and was based upon | 5.52 |
| of the Trade Practices Act 1974 | in relation to the use by |
| Cafike of the word "Grove" in relation | to fruit juices. The |
| second action was commenced by Cafike and the respondent is Powell, and, in addition to claims based upon | s . 5 2 | of the |
| Trade Practices | Act, claims are made | for damages for breaches |
of contract as well as damages under other causes of action.
As a result of directions given, the matters have proceeded basically in T. No. G 3 of 1987 and In that action there has
been further pleadings by Cafike, a further defence by
| Powell, a cross-claim by Powell, and | a reply and defence to |
| cross-claim. | The | issues between the parties are very wlde |
and cover very many causes of action coming within the
| original as well as | the accrued jurisdiction of the Federal |
| Court | . |
| The matters have had | an unfortunate history | In that |
| although the actions were commenced in March | of 1987, | the |
| loint matter has proceeded rather slowly. Despite | a | number |
of directions hearings, the parties had not always complied
gith dlrectlons glven. The last directions hearing was held
on 27 October 1987. At that hearing the Court was assured
| that the matter would | be ready for trial by | 2 February 1988. |
| As a | result, certain directions were made, | including | a |
| direction that any reports of experts be exchanged by | 2 3 |
| December 1987 and that a | date be fixed for hearing, being | a |
| date not before 2 February 1988, and also liberty to apply |
was granted. It is apparent from material before the Court
that therg has not been compliance with earlier directions in
| relation to the giving | of particulars and the giving of |
inspections and the giving, even, of discovery of documents
| relevant to the trial | of the action. |
| At this stage it | is important that I say | somethmg |
about the general practice of the Federal Court which, in
| this regard, is markedly different, | as I understand it, from |
| t h e practice xhich has occurred in the | p a s t m the | %?reme |
| Court | of | Tasmania, | although | there | may | well | be | changes |
| occurring | In | that | jurisdiction | as well. In the | Federal |
| Court, for practical purposes, any clam | is made by way | of |
application and that is provided for in the Federal Court
| Rules and the application directs the respondent | to attend at |
| a directions hearing. | In this regard there | is a marked |
difference between the Federal Court and Supreme Courts, not
| only in Tasmania but also in other | S ates. |
Generally speaking, in 5upreme Courts the action is
commenced by xay uf writ vhich directs that the defendant, if
desirous of defending the claim, enter an appearance. If no appearance 1s entered there is a procedure whereby judgment can be obtained in appropriate cases but If an appearance is entered, the rules of the Supreme Cuurts contain procedures whereby the future conduct of the action depends very much
| upon | the | activities | of the | legal | practitluners | of | the |
| parties, namely, the procedures | by way of pleadings and |
| matters o< that kind. The Supreme Court is available | to deal |
| with any matter that the parties want | to bring before it but |
| the Court itself normally does not take | an | active part in |
| those proceedings. |
| The Federal | Court, | however, | is | philosophically |
different in nature. At the directions hearing the Court is
| empowered by Order | 10 to | give directions as | to the future |
| conduct of those proceedings. | On one view, as a result of |
| directlons given, the Federal Court then takes | an active part |
| in controlling the future conduct of those proceedings. | In |
| this regard, it is very different from the State Supreme |
| Courts. | I do not propose to go into detail as to what those |
| steps are, but, it is | a new development In court management |
| in Australia and the Federal Court, even after | some | ten |
| years, is still developing thls concept. |
| One is aware that in Tasmania the amount | of work in |
| the Federal Court | is not | so great | as in | other States and |
| possibly in the absence | of a Judge of the Federal Court |
| * | actually residing in Tasmania or In Hobart, there has not been the guidance by the Court that has developed in other |
| States as to the procedures | to be observed and the method of | |
| control by the Court itself on the conduct of actions. | The | |
| whole purpose of | this taking of control by the Court is | an | |
| aspect of vhat these days is commonly called case | flow |
management, a development which all courts are very conscious
of at the present time. But at the same time, in order to be
| successful in | its new ventures, the Federal Court depends |
| very much upon the co-operation | of the legal profession. |
Without that co-operation the Court can give directions, they
| can be ignored | and if that happens what follows? |
.
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| The Court is required to do justice according | to |
law between the parties. It must act impartially between
parties and must ensure that their claims are properly
| presented and deternined. This is not a case whet-;? | the =ins |
of the legal profession should be visited upon their clients.
| The Court has a greater duty to the | litigants. |
In this regard, the Court was concerned when it
| heard, a short | ime | ago, that | he | parties | to | these |
| proceedlngs each sought | an adjournment of the hearing of |
these two actions. The Court had been assured that the
matter would be ready for trial by 2 February 1988 and as
| recently as until | a few days ago lt appeared that the |
solicitors for both parties took the view that the actions were not ready for trial. As a result of directions given by
| me to the Acting District Registrar, the letter of | 22 January |
| 1988 was | sent to the parties. | The | purpose of that was to |
enable the Court to look into the matter fully to determine
whether the adjournment should be granted or not and it is
| noted that there | are affidavits filed in support | of a motion |
| that an adjournment be granted. The affidavits were from the |
solicitors for Cafike and Powell respectively and each set
| out in s o y detail factual material to support the motion | f r |
| the ad]ournment of | the hearing. As | part of its control | of |
the proceedings, the Court thought it desirable that the
litigants should be present in Court to hear what I propose
to say in relation to this matter. Hence the direction that
they be present today. One is always conscious of the fact,
although I am not suggesting that it occurred in this case,
.
.
| that it is very easy | for practitioners to blame the Court for |
delays in the hearing of an action when those delays are not caused by the Court itself but by the legal practitioners. At the same time, it must Se realised that S G ~ S cases can Le
| very complex and very difficult and | it is unfalr | on litigants |
if they are forced to proceed wlth a hearing when thelr legal
representatives are not In a position to properly represent
them at that hearing. Such a course gives rise to a feeling
of injustice by the litigant, a feeling of unfalrness and a
feeling of the fact that the Court is acting unjustly. It 1s
| in this regard, | as I said before, that the Court relies very |
| much on the goodwill, the co-operation and the competence | of |
legal practitioners in ensuring the proper conduct of the
proceedings. |
| Having said that, | I come to the facts | of this case. |
| On the material before the Court there is | a | very strong |
| reason why an ad~ournment | should be granted. | It appears that |
| there has not been | a proper compliance with directions |
| prevlously | given in this | matter, | both | in | relation | to |
| discovery and inspection and also particulars, and | if the |
| matters were to proceed today | it may well | be | that one | or |
| other | or, | may | be | both | of | the | parties | would | be | at a |
| disadvantage. | The matter however has been complicated by the |
| fact that there has been a | change of sollcltors acting for |
| Cafike in both these matters. | The change occurred on 29 |
| January 1988 and notice was given to the Court on 3 | February |
| 1988 and about | the same time, | I do not need to decide whether |
| it was yesterday | or today, notice | was given to the solicitors |
.
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for Powell. The legal advisers for Cafike now say that they are ready to proceed with the hearing and are opposing any adjournment. Counsel also say that having regard to the
| letter of 22 Jazuary 1358 xritten by | the Acting Distr ls t |
Registrar indicatlng that the Court directed that the parties
| be ready to proceed | with a hearing of | the | actions in the |
| event that | adjournments were not granted, the fact | that |
| Powell now is not ready to proceed should not | be a relevant |
factor to consider when determining whether to grant the
| adjournment or not. There is some force in | that | submission |
| but, at the same time, it | is important to act justly between |
the parties and having regard to the earller conduct of the
then solicitors for Cafike, I cannot give the weight to the
| current | position | which | otherwise | I would | have | given, |
| especially when certain particulars of one of the claims | by |
| Cafike have still not been given; | I | refer primarily to |
paragraph 5 of the amended statement of claim by Caflke, even
though those particulars may well depend upon documents
inspected as the result of discovery by Powell and some of
those documents may not have been fully discovered.
| I am conscious also of the fact | that the delay in |
hearing claims of itself can give rise to injustice and one
| can assume, in | a case like this, that each party, | and, | in |
| particular, Cafike, in view of the fact that it says that | I |
| is now | ready | to proceed, is suffering some injustice by |
delay. But at the same time I have formed the opinion that it would be unjust to force Powell to proceed with the
| hearing in circumstances | where | it | ha5 not | been | given |
| particulars of all the claims made, where one aspect | of the |
| claim, as submitted from the bar table | on behalf of Cafike, |
| that an amount of somewhere between | $40,000 and $50,000 | is |
| cwing as a result of non-payment | uf mcaeqrs cwir,g pursuant tc |
the fruit juices that had been supplied by Cafike to Powell
| in | the early parts of | 1987, remains unpaid although | It |
| appears | there | is | no | specific | clam for | those | amounts. |
| Possibly it may come under | a claim for an account or may be a |
| claim for damages, but from what | I | have seen from the |
pleadings and from submissions made thls mornlng, it seems
| that the real issues between the | parties have not yet | been |
sufficiently identified to enable Powell to present its case
| adequately and that the only fair thing to do | as between the |
parties is to give further directions as to the interlocutory
steps to be taken for trial.
This gives rise, then, to a further aspect of the practice of this Court. Normally at a dlrections hearing the
| date of a further directions hearing | 1 s fixed. | In most |
| States, except in urgent cases, a date 1s not fixed for | the |
| hearlng of the action until a directlons hearlng is held at |
| which the parties can assure the Court | that | the matter | is |
| ready for-trial. In those circumstances, | the Court can fix | a |
| date for | hearing in the firm belief that the matter will |
| proceed for hearing at the date fixed. | In the present case |
| that was not | done. | The matter certainly was not ready for |
trial on 27 October 1987 but in order to try to expedite the
| hearing of the matter, directions | were given for | a date to be |
| fixed even though all interlocutory matters had not then | been |
.
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| fully | complied | with. | What | has | happened | illustrates | the |
undesirability of adopting that course, an experience which
has been had in other States, hence the current practice.
One aspect of the control by the Court and these
| directions hearings is that | it often forces litigants | and |
| their legal advisers to face up to | issues at a time before |
| the actual hearing commences. | By doing this it has been |
found in other States that any possible compromise to resolve the disputes between the litigants often occurs earlier than
| would | otherwise | happen. | This | is | omething | xhich | the |
litigants and their legal advisers should keep in mind,
although the Court itself plays no part In the conclliation
aspect of the matter. The Court does not want to know of any
| steps in such a course, lt merely draws that to the | attention |
| of the parties. |
In all the circumstances of the case I propose to
| grant | the | adjournment | sought | Powell. | by | In | these |
| circumstances, I desire to hear counsel | on what directions |
| should be given | to ensure that the matter will be ready | for |
trial at the next directions hearing.