Soufflet Beheer v AWB Limited

FEDERAL COURT OF AUSTRALIA

Soufflet Beheer v AWB Limited [2004] FCA 518

practice and procedure – whether orders should be made to determine certain separate and preliminary questions – insufficiency of factual foundation – orders refused

Federal Court Rules, O 29 r 2

Reading Australia Pty Ltd v Australian Mutual Providete Society [1999] FCA 718 followed
Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 followed
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 applied
Carl Zeiss Stiftung v Herbert Smith & Co [1969] 1 Ch 93 referred to
Dunstan v Simmie & Co [1978] VR 669 referred to
CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 referred to
Jacobson v Ross [1995] 1 VR 347 followed

SOUFFLET BEHEER v AWB LIMITED ACN 081 890 459
V 587 of 2002

KENNY J
28 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 587 OF 2002

BETWEEN:	SOUFFLET BEHEER APPLICANT
AND:	AWB LIMITED ACN 081 890 459 RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	28 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The parties’ application for orders, by consent, to be made in conformity with the minute of order filed on 18 March 2004 be refused.

2.The matter be fixed for further directions at 10 am on 12 May 2004.

3.There be no order as to the costs of today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 587 OF 2002

BETWEEN:	SOUFFLET BEHEER APPLICANT
AND:	AWB LIMITED ACN 081 890 459 RESPONDENT

JUDGE:	KENNY J
DATE:	28 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

introduction

1. The parties to this proceeding seek orders under O 29 r 2 of the Federal Court Rules for the determination of separate and preliminary questions.  The proposed questions are:

   (a)whether, on about 3 August 1999, Soufflet USA and the respondent entered into a binding agreement whereby the respondent would pay to Soufflet USA the sum of US$421,380.22;

   (b)if so, whether, in the circumstances, the applicant is entitled to recover from the respondent the sum of US$421,380.22 for which it is liable under that agreement.

   On 18 March 2004, the parties submitted a minute of orders proposing this course.  Counsel for both parties attended Court this morning to support their proposal.  The applicant also relied on written submissions that were filed on 20 April 2004.

2. Order 29 rules 1 and 2 provide:

   1.In this Order, question includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

   2.The Court may make orders for -

   (a)the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

   (b)       the statement of a case and the question for decision.

   the proceeding

3. By a…