Robinson, N.E. v Syefile Pty Ltd

[1985] FCA 495

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IN THE FEDERAL COURT OF AUSTRALIA 1

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VICTORIA DISTRICT REGISTRY	)	No. VG	248 of 1984
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GENERAL DIVISION	)

BETWEEN: NANCY ELEANOR ROBINSON

Applicant

AND: SYEFILE PTY. LIMITED

First Respondent

THE0 STANLEY GOREY

Second Respondent

ROLAND GOREY

Third Respondent

GILLIAN GOREY

Fourth Respondent

9 September 1985

REASONS FOR JUDGMENT

LOCKHART J.

On 5 July 1985 this case was first specially fixed for

hearing for 29 August. The trial could not then commence due to

circumstances beyond the control of the parties, but the trial was

later specially fixed to commence today.

At the commencement of the hearing this afternoon counsel for

the third and fourth respondents sought an adjournment of the hearing

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on the ground that the applicant had, as la,te as this morning, filed a

supplementary list of documents in the matter which referred t o

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edocuments that on the face of the list went to--critical issues in the

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case. Counsel for the first and second respondents jolned in that

application for an adjournment.

Discussion between. counsel and the Bench established that

lists of documents had been filed as long ago as April this year and

that inspection had taken place soon after the lists were filed. The

applicant's answers to interrogatories were not sworn in fact until 27

I	August 1985,	and filed on	4	September. Certain of the answers to
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interrogatories suggested to the solicitors for the third and fourth

respondents that there were documents in the possession, custody or

power of the applicant which had not been discovered.

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Correspondence then apparently ensued between the solicitors

which led to the filing of the supplementary list by the applicant.

The reason for this unfortunate occurrence lies in an oversight by the

solicitors for the applicant. Upon being informed of these matters I

stood the matter down until 4.00 p.m. this afternoon so that counsel

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i	for the respondents could inspect the documents referred to in the
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supplementary list and consider their clients' position in the matter.
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When the matter resumed at 4 o'clock this afternoon counsel

for the third and fourth respondents i formed the Court that he sought

to have the matter adjourned because a brief perusal of the documents

produced by the applicant revealed what appeared at this stage to be

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I the necessity to have them inspected by an accountant nominated by the

third and fourth respondents, who no doubt 'in due course would have to

i	l	prepare a report for use in this case.
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Also, although this was only relied upon incidentally, it

seems that certain of the documents referred to in the list of

documents were not in fact produced in Court, being bank statements and bank deposlt slips. Counsel for the first and second respondents joined in that application also.

The application for adjournment was not opposed by counsel for the applicant in all the circumstances. I propose to grant it and

to adjourn the matter until the next call-over of matters in

Melbourne.

All respondents ask for an order for costs in their favour

caused by the trial being aborted. Nothing is offeZed in opposition

to such an order. I propose to make an order that the costs thrown away by the adjournment of the matter today be paid in any event by

the applicant; but I note in this regard the statement by counsel for

the applicant in Court that, although the costs would be borne by the

applicant, in truth she will be indemnified for them by her solicitors

so that she will not be herself out of pocket.

There remains the question of amendment to the pleadings.

Counsel for the applicant seeks to amend the statement of claim in the

terms and manner set out in exhibit	1.	That is not opposed by the
respondent.

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0 The orders of the Court are as followiz

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1. That the matter be adjourned to the next call-over in Melbourne.

2 . That the costs of the respondent thrown away by reason of the

adjournment of the matter today be borne in any event by the

applicant.

3 .	Leave be given to the applicant to amend her statement of
claim as set out in exhibit 1, the amended statement of claim
to be filed and served on or before 16 September 1985.

4. Leave be given to the respondents to file and serve amended defences to the amended statement of claim on or before 23 September 1985.

5.	The costs of and occasioned by the amenpments to the
statement of claim are to be paid by the applicant in any

event.

preceding pages are a true copy of the

._ Reasons fsr .!&rner.t herein of hls Honour

I Mr. Justice Lockhart I Asso6ate