SOCIÉTÉ Des Produits NestlÉ SA and ANOR v Christian and ANOR (No.7)

[2013] FCCA 2468

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ANOR v CHRISTIAN & ANOR (No.7) [2013] FCCA 2468

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment of an application for an adjournment or stay of hearing on final relief for the purpose of obtaining further evidence about securing legal representation – application refused.

First Applicant: SOCIÉTÉ DES PRODUITS NESTLÉ SA

Second Applicant: NESTLÉ AUSTRALIA LTD ACN 000 011 316

First Respondent: JAMES WILLIAM CHRISTIAN

Second Respondent: MARK CHARLES CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 17 October 2014

Delivered at: Sydney

Delivered on: 17 October 2014

REPRESENTATION

Solicitors for the Applicants: Ms M. Olsen by telephone
Banki Haddock Fiora

First Respondent by telephone

ORDERS

1. The first respondent’s application in a case filed on 16 October 2014 is dismissed. 

2. The first respondent pay the applicants’ costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3214 of 2013

SOCIÉTÉ DES PRODUITS NESTLÉ SA

First Applicant

NESTLÉ AUSTRALIA LTD ACN 000 011 316

Second Applicant

And

JAMES WILLIAM CHRISTIAN

First Respondent

MARK CHARLES CHRISTIAN

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This morning I pronounced an order in relation to an application filed on 8 October 2014 by the first respondent, Mr Christian, for an adjournment for 90 days and orders in relation to submissions on the making of further final orders.  I heard submissions on both these matters on 9 October 2014. 

2. On the afternoon of 16 October 2014 the first respondent, Mr Christian, filed an application in a case seeking an adjournment in these proceedings for 120 days.  Also in the afternoon of 16 October 2014, but before he filed the application in a case, Mr Christian filed two affidavits on which he intended to rely in support of the application for an adjournment of 120 days.

3. Before I pronounce my orders this morning I informed the parties that I proposed to deliver my reasons for judgment on Mr Christian’s application for an adjournment he filed on 8 October 2014 and in relation to the further final orders.  I indicated I would do so on the basis that I would treat the application in a case Mr Christian filed on 16 October 2014 as an application to set aside the orders I proposed to make in relation to the matters I heard on 9 October 2014, the intent being that I would set aside the orders I proposed to make if Mr Christian could satisfy the Court he should be granted the 120 day adjournment he seeks in his application in a case filed on 16 October 2014. 

4. Mr Christian asked whether I could first deal with his application for an adjournment of 120 days.  Early in the course of submissions made in relation to that application Mr Christian stated that there was a law firm that was ready to start doing work on his behalf in one week’s time and that that firm would be prepared to do that at a rate of being paid $1000 a week.  The law firm was stated to be Armstrong Lawyers.  I indicated to Mr Christian that what he had stated was not reflected in his affidavits.  I there had in mind, in particular, the affidavit that Mr Christian identifies as his 14^th affidavit, being an affidavit which attaches email correspondence between him and the law firm Armstrong Lawyers. 

5. The first communication that is attached is an email by Mr Christian to Armstrong Lawyers on 11 October 2014, in which he requested Armstrong Lawyers provide Mr Christian with an estimate of the costs of Armstrong Lawyers providing their assistance to Mr Christian.  Mr Christian said in that email that he needed to prepare a cross-claim and he needed the time by which such assistance may be provided by Armstrong Lawyers.  Armstrong Lawyers responded by email on 13 October 2014, which was as follows:

   We do not have sufficient information to provide you with a cost estimate. 

   In any event, based on the information about the 2 proceedings on the Court site, we need to review at least 38 Affidavits (and the exhibits), 1 Application, 1 Response, 5 Applications in a Case, 9 Outlines of Submissions, 3 List [sic] of Authorities, 5 Judgments and 16 Orders before we are in a position to provide you with an estimate. 

   Further, we do not consider that we would have sufficient resources to assist you having regard to the time constraint in the proceedings.

6. After further discussion Mr Christian indicated he was not in a position to deal with the application for an adjournment for 120 days and he asked for an adjournment to enable him to put on more evidence.  Ms Olsen, the solicitor for the applicants, objected to that course and she submitted that I should dismiss Mr Christian’s application to adjourn the matter for 120 days.  In my opinion, I should dismiss the application. 

7. Apart from making orders in relation to damages or an account of profits, I have made all orders that I intend to make in relation to the substantive reasons I published on 3 September 2014.  Should Mr Christian wish to apply for a stay of the orders, he can make a fresh application either before this Court or in the Federal Court at the time he applies for leave to appeal.  Of course, that Court does not have jurisdiction to grant a stay until an appeal is on foot.  But there is nothing to prevent Mr Christian from making an application for a stay at the same time he applies for an application for leave to appeal.

8. Mr Christian also filed this morning written submissions in which he indicated he wished to seek an order to set aside the orders I made on 3 September 2014.  I decided not to determine that issue because there was no application in a case filed.  I did indicate to Mr Christian that although the Court may well have power to revisit orders it has made, the more usual course where the basis of an application to set aside orders is that the Court made those orders in error, is to pursue such submissions before an appeal court. 

1. Accordingly, the orders of the Court are as follows. 

   1)The application in a case filed on 16 October 2014 is dismissed. 

   2)The first respondent pay the applicants’ costs of that application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  27 October 2014