Talon Contracting Pty Ltd v PR Truck Sales Pty Ltd
[2008] FMCA 1176
•11 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALON CONTRACTING PTY LTD v PR TRUCK SALES PTY LTD | [2008] FMCA 1176 |
| PRACTICE AND PROCEDURE – Adjournment – further adjournment – third final hearing date sought – whether prospect of settlement at mediation – applicant’s costs high – costs a normal incident of litigation – whether prejudice to respondent – proximity to listed final hearing – case management considerations for simple small claim. |
| TRADE PRACTICES – Misleading and deceptive conduct. |
| Federal Magistrates Act 1999 (Cth), ss.3, 14, 42 Federal Magistrates Court Rules 2001 (Cth), r.1.03 Trade Practices Act 1974 (Cth) |
| Mahmoud v The Owners’ Corporation Strata Plan 811 (No.2) [2006] FMCA 1711 Myers v Myers [1969] WAR 19 Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 The State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146 Watson v Foxman (2000) 49 NSWLR 315 |
| Applicant: | TALON CONTRACTING PTY LTD |
| Respondent: | PR TRUCK SALES PTY LTD |
| File Number: | PEG 43 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 11 August 2008 |
| Date of Last Submission: | 11 August 2008 |
| Delivered at: | Perth |
| Delivered on: | 11 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.J Morris |
| Solicitors for the Applicant: | Bruce Havilah & Associates |
| Counsel for the Respondent: | Mr B.C Smith |
| Solicitors for the Respondent: | Ilberys Lawyers |
ORDERS
The Applicant have leave to file and serve the Amended Statement of Claim filed on 10 July 2008.
The Respondent have leave to file and serve an Amended Defence and Counterclaim by 4:00pm on 25 August 2008.
The Applicant have leave to file and serve a Reply and any Defence to Counterclaim by 4:00pm on 1 September 2008.
The Applicant’s expert evidence be filed by 4:00pm on 8 September 2008.
Any expert evidence for the Respondent be filed by 4:00pm on 15 September 2008.
The Applicant pay the Respondent’s costs of today, thrown away, and if costs are not agreed, those costs to be dealt with by the Court on a date to be determined.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2008
| TALON CONTRACTING PTY LTD |
Applicant
And
| PR TRUCK SALES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore – edited and revised from the transcript)
Background
This matter was the subject of an Application in the Case on 10 July 2008 by the Applicant. The Application in the Case seeks the adjustment of the current schedule for the various interlocutory processes in these proceedings, and seeks that they be rescheduled and a hearing presently listed for 4 November 2008 be re-listed to a date after 26 January 2009.
The Application in the Case is supported by an affidavit sworn by Mr Morris, a solicitor having the primary conduct of the matter on behalf of the Applicant.
The gist of Mr Morris’ affidavit is contained in paragraphs 7-14 indicating that, in respect of a claim for about $25,000, the Applicant has incurred legal costs to 7 July 2008 amounting to $18,231.98.
In those circumstances, Mr Morris says he has advised his client that the cost of progressing the claim through the Court is becoming disproportionate to the overall value of the claim itself.
It is said in the affidavit that the majority of the costs incurred in the matter since further instruction can be attributed to the preparation of affidavit evidence in chief in accordance with the Orders made by this Court on 15 April 2008 and revised on 13 June 2008.
The affidavit goes on to say that the costs involved relate to the fact that it is necessary in the affidavits, in a case involving allegations of misleading and deceptive conduct, for direct speech quotations to be put in for the admissibility of that evidence to be assessed, particularly in the context of a tendency to descend into hearsay evidence of what was said by third parties in telephone attendances, and the like.[1] The affidavit goes on to say that, in the view of Mr Morris, it is more appropriate that the matter go to mediation before there be a requirement to file any further affidavits.
[1] Watson v Foxman (2000) 49 NSWLR 315 at 318-319 per McLelland CJ.
As indicated above, the basic gist of the Application in the Case is that the matter be rescheduled. In that context, it is necessary to have regard to the litigation history of the matter.
The matter was commenced by Application and a Statement of Claim on 14 March 2008. A first court date was set for 31 March 2008, and adjourned by consent of the parties to 15 April 2008. On 15 April 2008, orders were made in accordance with the usual practice of this Court, listing the matter through to hearing, and on that date, orders were made for the provision of particulars of damages by the Applicant, the filing and serving of a defence and counterclaim, the filing and serving of a reply and any defence to counterclaim, the Applicant to file and serve affidavits, the Respondent to file and serve affidavits, and for the matter then to be referred for mediation before a Registrar of this Court on or before 30 June 2008, with the matter then listed for hearing of one day on 5 August 2008.
The matter came on again for a second court date on 13 June 2008. At that time the Applicant indicated that they were having difficulty in obtaining instructions from their client, and furthermore, that had they realised that the proceedings would be heard so quickly, they would have deferred making the Application. Against some opposition from Mr Smith on behalf of the Respondent, the timeframe for the various orders made on the first court date were all rescheduled, providing for mediation on or before 30 September 2008, and the matter was re-listed for hearing of one day on 4 November 2008.
Effectively, the present Application in the Case seeks the adjournment of the matter to a third final hearing date, and seeks that adjournment several months after the matter was first set down for hearing by the Court.
Consideration
It is, as has been adverted to on a number of occasions, both today and in previous hearings, a very simple and very small trade practices claim which, if the Application in the Case presently before the Court is to be acceded to, will not be heard until, at the earliest, late January or early February 2009, that is, almost 12 months after the initial application.
In the Court’s view, in the context of the nature of this particular claim not being a complex trade practices claim, even for this Court, with its limited trade practices jurisdiction, that is, speaking generally, unacceptable in terms of the objects of the Federal Magistrates Act 1999 (Cth)[2] and the Federal Magistrates Court Rules 2001 (Cth)[3] and the purposes for which this Court is set up. In determining whether or not the matter is to be adjourned, and having regard to the relevant authorities, it is necessary for the Court to consider the question of prejudice, and also to consider the question of case management, the latter not outweighing the former, other than in the most obvious cases.[4]
[2] Sections 3, 14 and 42 (“FM Act”).
[3] Rule 1.03 (“FMC Rules”).
[4] Including The State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ; at 163-174 per Kirby J; Myers v Myers [1969] WAR 19; Patrick v Wadoon Pty Ltd (No.2) [2007] FMCA 1766 at paras. 16-28 per Lucev FM; Mahmoud v The Owners’ Corporation Strata Plan 811(No.2) [2006] FMCA 1711 at para. 7 per Lucev FM.
In terms of prejudice to the Applicant, it has been put that there will be increased costs if the matter continues to run in the way in which it is presently scheduled to run. The Court observes that the question of costs is, of course, a normal incident of litigation, and it is the case that if the matter does go to mediation now, and affidavits are not required to be filed until after the mediation, then there will be some reduction in cost, and the Court accepts that is the case. However, this matter has been scheduled, and has been run on the basis that the affidavits would be filed prior to the mediation since it first came before the Court and orders were first made on 15 April 2008. It is only at this late stage and now less than three months prior to the listed trial, and now about a month before a mediation which has now been scheduled, that an application is made to say, “well, that process is unacceptable, we ought to scratch that process, and start from scratch again”.
It is not unusual, either in this Court or elsewhere, for affidavits to be filed prior to a mediation so that the mediator has before them all the relevant material to allow them to undertake a mediation with full and frank disclosure of the parties’ respective positions. It is said in the material affidavit of Mr Morris that there are good prospects of the litigation settling if it goes to mediation. It is not said why, and other than the fact that the Applicant might well by that time have costs exceeding the quantum they claim, there is no hint as to why there are otherwise good prospects of the matter settling.
In terms of prejudice to the Respondent, as Mr Smith has indicated, and the Court accepts, the Respondent continues to incur costs. There is no quantum put on those costs, but in the context of this being the third court date for this matter, the Respondent has had to file material in relation to the matter by way of a Response and a Defence that has already been filed, and now, given amendments to the Statement of Claim for which leave has not yet been given to file, if leave is given to file, there will be further costs by way of further amendment to the Defence. There is also prejudice to the Respondent because they simply have to wait with this litigation hanging over their heads awaiting resolution.
In terms of case management, it is undesirable that a matter such as this should have to be listed, effectively, for a third hearing, close to 12 months after the initial application was made, and that is contrary to the objects of both the FM Act and the FMC Rules. To re-list the matter again also means that other litigants who might have been listed in the meantime on 5 August 2008 and 4 November 2008 and who might have got on in the meantime, have missed a slot. If the matter is deferred again, it simply might mean that the Court has an available slot which is unable to be filled, and again that is undesirable in the context of case management in a lower level court in the federal system, given the objects for which this Court was established.[5]
[5] See, generally, Rana v University of South Australia (2004) 136 FCR 344 at 347-350 per Lander J; [2004] FCA 559 at paras. 19-44 per Lander J.
Conclusion
The considerations above mean that in all of the circumstances the prejudice which the Applicant now asserts, was evident, or ought to have been evident, from the outset of this case, and if not from the outset, then certainly prior to the second court date, given what was said at the second court date by the Applicant. The prejudice to the Applicant does not outweigh the prejudice to the Respondent in the circumstances of the case, such as to warrant an adjournment. In terms of the case management considerations, those do weigh significantly in favour of the matter not being further adjourned, and not being further adjourned even in circumstances where there is now some suggestion that it is a two-day case, and not a one-day case. The matter has now also been fixed for mediation on 18 September 2008, and that is a further factor weighing in the consideration as to why the present schedule ought not be interfered with.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Michele Lord
Date: 20 August 2008
0
5
3