Ritch Engineering Pty Ltd v Multico International Pty Ltd

[1986] FCA 309

IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA	D STRICT	REGISTRY	)	V. No. G 302 of 1984
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GENERAL DIVISION 1

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RITCH ENGINEERING PTY. LTD. Applicant

and

MULTICO INTERNATIONAL PT'I. LTD.,

BRIEN BARTHOLOMEW KQYES

and GEORGE KOSMOS T!ETIS Respondents

COURT: NORTHROP J.

DATE:	- 23 JUNE 1986
PLACE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The date fixed to commence the hearing of this matter, namely, 30 June 1986, be vacated.

2 . The respondents pay the applicant's costs of the motlon.

3 . The applicant's costs thrown away as a result of this

urder be reserved.

4 . Liberty to apply.

5.	The matter be set down for hearing on Monday, 29
September 1986.

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(Settlement and entry of Orders is dealt with	in 0.36 of the
Rules of Court.)

* Not considered appropriate for further distribution.

IN THE FEDERAL COURT OF AUSWALZj )

1

VICTORIA DISTRICT REGISTRY	)	V. No. G 302 of 1984
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DIVISION GENERAL )

BETWEEN :

Applicant

- RITCH ... ENGINEERING PTY. LTD.

and

KULTICO INTERNATIONAL PTY. LTD.,

BRIEN BARTHOLOMEW HAYES

GEORGE and KOSMOS TETIS Respondents

COURT: NORTHROP J .

BA.=: 23 JUNE 1986

&A=: MELBOURNE

EX TEMPORE RmSONS FOR JUDGMENT

There is before the Court a motion that the date

fixed for the hearing of this matter, namely 30 June 1986, be

vacated. There is much material before the Court by way of	P
affidavit both as to the history of this matter and more

importantly, the events which have occurred over the last

four weeks or so in relation to the bringlng of witnesses to

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Australia who are presently resident in the United Kingdom. !

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It appears that the representations made upon which

the present action is based were made to persons in the

United Kingdom by conversations in the United Kingdom. and

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possibly also by mail and telephone, to those persons in the

United Kingdom. As a result of this, a company in the United

Kingdom engaged in activity in that country which caused the

applicant a large amount of expense to prevent and take steps

to cure by way of rectification of certain records in the

United Kingdom. Arising out of those representations and

based upon the Tr-rade Practices Act, the applicant is bringing

proceedings in Australia against the respondents, being a

corporation, and two directors of that corporatlon.

It appears further that a third person, a Mr. Colin

Hayes, whose connection with the company 1 s not absolutely

clear, at least was present during some of the time when

representatlons were made and may have himself made

representatlons as an agent for Multico International Pty.

Ltd. The applicant is desirous of calling as a witness a Mr.

Benny, being the person to whom the representations were made and the person being the director of the company which then engaged in the activities in the United Klngdom.

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Mr. Colin Hayes also is in the United Kingdom. I ’.

Both Mr. Benny and Mr. Hayes are, from what I have seen so

far, essential witnesses to thls action. This immediately

gives rise to the problem of the obtaining of evidence from

persons who are not within the jurlsdiction, in this case

Australia.

This Court has no power to order the issue of

subpoenaes to compel persons like that to attend to give

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evidence, and it seems that the two most common ways of

obtaining evidence from persons in that position is either by

way of evidence on commlssion in the United Kingdom, or by

arranging the voluntary attendance of those persons in

Australia in order to give evidence.

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Because of the unusual features of this case and

the position of the witnesses, a special fixture was arranged

for the hearing of the action on the basis that a large

amount of time would be qiven to enable the parties to make

those arrangements to get the witnesses present. A tentative

date was fixed for	30 June 1986 and notice of that tentative	I
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date was given in March, towards the end of March 1986, but

formal notificatlon of the date was not given until late in

May when notice was qiven by letter to the applicant's

sollcitors, and the respondents' solicitors did not know

until earlv June that the	date, 30 June	1986, was a fixed
date.

This practlce illustrates two matters. Firstly, I ..

the undesirability of fixinq dates for hearing apart from a

callover, the practlce of the callover being one which is now adopted by this Court in Vlctoria when dates are fixed for

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hearing in the presence of legal practitioners of the parties

and in the circumstances when both partles know the date on

which the matter wlll be fixed for hearing. The other matter

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illustrates the problems arising where there is the passing

of information from Judqes' associates to legal practitioners

for the parties. Whenever this is done there is always room

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I for doubts and difficulties arising and this is a perfect

example where posslbly because of misunderstandings,

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difficulties have arisen as to whether 30 June 1986 was a

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fixed or tentative date for the hearinq of this matter. If

that date was to be a fixed date, there seems to have been an

inordinate delav before formal notification was given by the

registry to the parties, and even then there appears to be

one letter only to the applicant's solicitors, not to the

respondents' solicitors. I merely make those comments by way

of background material before I turn to the matters which are

the essential matters for consideration in relation to the

present motion.

I note the long history of the matter as appearinq

in the affidavit of Mr. Steven, but in my view, the early

history has no bearing on this matter in the absence of anv

other motion in relation to the applicant having judgment

entered for default or some order of that kind. I am not

prepared to make any finding on the material before me that

the respondents either by themselves or through their

solicitors are enqaging in any course of action designed to	I
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defeat the bringing on f this action for hearing.

As far as the applicant is concerned, it has had

difficulty in arranging Mr. Benny's attendance in Australia.	c,- , -
Those arrangements have been made and Mr. Benny is due to	p
leave England later this afternoon Australian time. He does

not live in London, but will spend about four hours or so to

get to London and there may be difficulties in stopping him

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departlng from London although that, in all probability,

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should be done and could be done by means of urgent messages

left for him at Heathrow. There is also the danger that it

may be difficult to arrange for Mr. Benny to come to

Australia later this year. As opposed to that, I am

satisfied, on the material before me. that since the

beginnlng of this month the solicitors for the respondents

first knew of the fixed date for hearing being confirmed and

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have taken all reasonable steps to arrange for Mr. Colin evidence, that Mr. Hayes will not be here for reasons which

he has set out in his affidavit and it is not for this Court

to decide whether those reasons are adequate or not. It is

U	sufflcient to sap that on their face they appear to be
'D	reasonable explanations as to whv he will not come on this
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W	occaslon and I think it would be unfair to the respondents to

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(D	compel the hearins of the matter in the absence of	Mr. Colin
Hayes.

In all the circumstances, it seems deslrable that . _ _ .

the hearinq date should be vacated, but that a new date be

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fixed for some tune after the beqinning of September whlch

would give ample time to the parties to make arrangements for

the witnesses to be present for that hearing. If there are

qoing to be difficulties in getting one or other of the

witnesses into Australia, it may be necessary for the parties

to explore other methods by which the evidence could be

obtained and accordingly, there will be liberty to apply in

relation to this matter generally.