Sissian Investments Pty Ltd v Commissioner of Taxation

[1988] FCA 803

JUDGMENT No. 603..I/...%.......

NOT FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA

I

NEW SOUTH WALES DISTRICT REGISTRY j NG 407-414 of 1988

) NG 758 of 1988

GENERAL DIVISION )

BETWEEN :	SISSIAN INVESTMENTS PTY. LIMITED
---	Applicant

-

AND :  THE COMMISSIONER OF TAXATION

Respondent

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JUDGE MAKING ORDER:	LOCKHART J.
DATE ORDER MADE:	2 DECEMBER 1988
WHERE ORDER MADE:	SYDNEY

MINUTE OF ORDER

36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The proceeding be dismissed for want of prosecution.

2 . The applicant pay the costs c~f the respondent of this

proceeding.

- NOTE: Settlement and entry of orders is dealt with in Order

NOT FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	j NG. 407-414 of 1988
) NG. 758 of 1988
GENERAL DIVISION	)

BETWEEN:  SISSIAN INVESTMENTS PTY. LIMITED

Applicant

AND :	THE COMMISSIONER OF TAXATION
-

Respondent

I

2 December 1988

REASONS FOR JUDGMENT

LOCKHART J.

This matter has been in the list for directions on some

nine occasions including today. The respondent now moves, after notice conveyed to the solicitors for the applicant by letter of 29 November 1988, for an order that the proceedings stand dismissed for want of prosecution pursuant to Order 52A Rule 14 of the Federal Court Rules, or alternately pursuant to the Court's implied power to exercise control over its own proceedings. No Notice of Motion has been flled. No point is taken as to that, and in the circumstances I would not-

accede to such a point had it been taken.

The matter has a sorry hlstory. I need not traverse each occasion on whlch the Court has given directions which

have not been complied wlth, and I shall mention but some of

them. On 18 April 1988 the Court dlrected that the parties

flle and serve agreed statements of issues or, failing

agreement, separate statements of issues by a named date;

that was not done. On 10 June the Court ext'ended the tlme In

which the parties should file and serve statements of issues

to 1 July 1988. The extended timetable was also not complied

wlth. On 8 July the Court directed the applicant to flle and

serve by a named date a statement outlining succinctly the

issues as the applicant percelved them. The Court sald that

if any further extension of time to comply with the dlrection

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was sought, the appllcatlon for an extenslon was to be supported by affidavits to be flled and served by a named date. On 8 August a further extension of time to flle the statement outlining the Issues as the applicant perceived them was granted to the applicant. A self-executing order

was made, with effect	hat If the statement of Issues was not
filed by a certain date the proceeding would stand dismissed

for want of prosecution. On the last date permisslble under the directions made on 8 August a document was filed which purported to be a statement of issues as the applicant perceived them. The self executing order therefore did not come into operatlon.

On 17 August the Court directed the applicant to flle and serve statements of all witnesses which the applicant proposed to call on or before 14 September. That dlrectlon was not complied with. On 27 September the applicant was

granted an extension of time to file and serve those

statements of witnesses to 12 October. Again no statements were filed. On 14 October, being the ad~ourned date, the matter was adjourned to 1 November. On 20 October, a single statement was filed on behalf of the applicant, that

statement belng that of the solicitor bctlng for	the
applicant in these proceedings.	On 1 November, after the

applicant indlcated that he proposed to call no other witnesses other than an expert wltness, the Court dlrected the applicant to file and serve on or before 21 November a statement of the expert who It was proposed to be called. That has not been done

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It has been made plain to me this morning by the

solicitor for the applicant that the further evidence upon which the applicant wishes to rely consists of the statement of one wltness being an expert wltness. It appears from the affidavit sworn by the solicltor acting for the applicant on

30 November and filed in the proceedings today that any such	statement, if available at all, will not be available until
on or about 22 February next year.

The grounds upon which the applicant relies to reslst

the dismissal of the proceeding for want of prosecutlon are set out in the affidavlt of the appllcant’s solicltor sworn on 3 0 November. Some of those grounds relate to matters personally affecting the solicitor but others generally to the conduct of this case.

In my opinion thls is a case that plainly calls for the

Intervention of the court by summary order. The recitation of the course of proceedings, and of the repeated failure to comply with directions, speaks for itself. It is unnecessary to refer further to the waste of curial resources resulting from the multiplication of directions hearings in this matter resulting from non-compliance.

Accordingly the Court orders that bhe proceeding be

dlsmlssed for want of prosecution and tha	t the applicant pay
the respondent's costs of the proceedings

I

I certlfy that this and the preceding

three ( 3 ) pages are a true copy of the

reasons for ~udgment herein of	the
Honourable Mr. Justice Lockhart.
-	Date: 2 December 1988

Solicitors for the Applicants:	John Sarroff L Company
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 December 1988
Date of Judgment:	2 December 1988