SNAITH v Indochine Resources Ltd
[2010] FMCA 902
•12 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SNAITH v INDOCHINE RESOURCES LTD | [2010] FMCA 902 |
| PRACTICE AND PROCEDURE – Parties late in filing evidence and submissions – vacation of hearing date. |
| Applicant: | CHRISTOPHER SNAITH |
| Respondent: | INDOCHINE RESOURCES LTD |
| File Number: | SYG 1664 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 November 2010 |
| Date of Last Submission: | 12 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C McArdle |
| Solicitors for the Applicant: | McArdle Legal |
| Counsel for the Respondent: | Mr S Boatswain |
| Solicitors for the Respondent: | Eakin McCaffery Cox |
ORDERS
The hearing date of 17 and 18 November vacated.
Applicant to file and serve any further affidavits upon which he intends to rely on or before 16 November 2010.
Respondent to file and serve any further affidavits upon which it intends to rely on or before 30 November 2010.
Applicant to file with my associate and serve outline of case and list of authorities two weeks prior to hearing.
Respondent to file with my associate and serve outline of case and list of authorities one week prior to hearing.
Liberty to apply on two day’s notice.
Hearing date 7 and 8 February 2011.
Respondent’s cost of the application are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1664 of 2010
| CHRISTOPHER SNAITH |
Applicant
And
| INDOCHINE RESOURCES LTD |
Respondent
REASONS FOR JUDGMENT
The Federal Magistrates Court in its general federal jurisdiction was tasked by the Parliament with providing justice that was quicker, simpler and cheaper. It has over the first 10 years of its existence succeeded admirably in complying with that mandate. Generally speaking, cases are tried and judgments delivered within six months of an application being filed in the Court. In order that this is done a certain discipline is required on the part of those appearing before the Court for compliance with timetables laid down at the first court date. The general rule is that at the first court date a hearing date will be provided and the parties are cautioned to ensure that they comply with the other orders so that the hearing date can be maintained.
This case is no exception. The first court date was 27 August 2010 and orders and directions were made which would have seen the proceedings brought to trial on 17 and 18 November 2010. There was liberty to the parties to apply on three day’s notice. It seems that at an early stage the timetable began to slip. The applicant was one day late in filing his amended statement of claim and six days late in filing his evidence. The respondent was also late in filing its evidence in reply by some 13 days net.
The matter was set down for mediation early in November. For reasons which have been explained in an affidavit by Mr Boatswain, that did not take place until 8 November.
On 11 November, the applicant sought to file a further affidavit, claimed to be in reply, by a new witness. And, on the 12th, attempted to file an affidavit in reply by the applicant himself. This is only three working days before the hearing. The applicant was required to file his contentions of fact and law two weeks prior to the hearing but has not done so as at the time this decision is being made. He says he will do it today.
It is possible to deal with late affidavits by refusing to allow them to be read. That, of course, restricts the facts on which a case is decided in a manner that could result in a decision which bears little relationship to the full dispute. It is always best to allow evidence in if it can be rebutted or dealt with. The orders which this Court habitually makes for the filing of outlines of case and lists of authorities is of benefit not only to the parties but also to the Court so that it can understand where each party is coming from prior to going onto the bench. It is recognised in most common law jurisdictions that the day has long passed when a judge moved onto the bench in complete ignorance of the case he was about to hear. Modern requirements for case management preclude that indulgence. Not only has the respondent been disadvantaged by not receiving the applicant’s outline of case, so has the Court.
This Court is always reluctant to vacate hearing dates. One of the reasons is it runs a strict docket system so that if a hearing date is vacated very late there are no other matters waiting to be tried. The benefits of this are that when the Court gives a date for hearing the parties know that they will be called on, like it or not. And that in itself is an aid to the speedy resolution of disputes. However, the interests of justice require that cases be tried properly and that parties are not taken by surprise, either in the arguments of law that are to be made or in respect of evidence.
Mr Boatswain’s clients apparently are coming from Cambodia so they will be delayed on an aeroplane, effectively, for 24 hours during which time it will be difficult for him to contact them. Mr McArdle’s client wants his additional evidence to be heard. The Court wants to know exactly what the case is that it is being asked to try because, with the greatest respect to the applicant, the statement of claim is somewhat lacking in a concise elucidation of the factual and legal basis upon which the claim is brought.
In those circumstances, I think the best course of action to take is to accede to the respondent’s request that the hearing dates be vacated, and to make orders for the further conduct of the matter with the strict understanding that if they are not complied with, very serious consequences will follow. The applicant will be disadvantaged, regrettably, but then much of the delay is down to him.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 18 November 2010
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