Taprobane Tours W.A. Pty Ltd v Singapore Air Lines Ltd

[1990] FCA 133

. :

133 1 9 0 1

JUDGMENT No. ........ ..... ........ ..,,,,,,,, I '

C A T C H W O R D S	; I
!I
L

PRACTICE AND PROCEDURE - trial of action - motion to vacate -

unavailability of counsel - desirability of separate trial on issue of liability - trial imminent - late motion - motion

dismissed.

TAPROBANE TOURS W.A. PTY LTD V SINGAPORE AIRLINES LTD, PAUL HOWARD

NO. WAG 124 of 1987

REGISTRY

FRENCH J.

PERTH

RECElVED

5 APRIL 1990 12 APR 1990

FEDERAL COURT OF

AUSTRALIA

PRlNClPAl

IN THE FEDERAL COURT	1
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. WAG 124 of 1987
B E T W E E N :	TAPROBANE TOURS W.A. PTY LTD

Applicant

and

SINGAPORE AIRLINES LTD

First Respondent

and

PAUL HOWARD

Second Respondent

MINUTE OF ORDERS

JUDGE PIAKING ORDER:	FRENCH J.
DATE OF ORDER:	5 APRIL 1990
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

On the respondents1 motion filed 29 March 1990:

1. the motion be dismissed;

2.         the respondents pay the applicant's costs of the motion.

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

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) No. WAG 124 of 1987
B E T W E E N :	TAPROBANE TOURS W.A. PTY LTD

Applicant

and

SINGAPORE AIRLINES LTD

First Respondent

PAUL HOWARD

Second Respondent

CORAM:  FRENCH J.
5 APRIL 1990

EX TEMPORE REASONS FOR JUDGMENT

By this application, which was commenced on 6 November 1987, Taprobane Tours W.A. Pty Ltd ("Taprobane") claims damages against Singapore Airlines Ltd and its Australian marketing manager, Mr Paul Howard, for alleged contravention of s.46 of the Trade Practices Act 1974. The contravention is said to arise from the airlines conduct in relation to its refusal to sell to Taprobane at wholesale rates airline tickets for fllghts from

Australia to the Maldive Islands. The application has been set

down for hearing for ten days commencing 5 June. The respondent now moves for orders that the trial dates be vacated until dates to be fixed after 31 July 1990 and that there be a separate trial as to liability.

The motion to vacate the hearing date is supported by an affidavit sworn by a member of the flrm of solicitors acting for the respondents. As appears from correspondence exhibited to the affidavit, the respondents' solicitors wrote to the District Registrar on 19 October and requested that the application be listed not before 18 June 1990. The reason advanced was that counsel for the respondents had other court commitments from March to June. A similar letter to the Registrar from the applicant's solicitors had indicated that any date after 23 March would be convenient. Initially the Registry advised that the matter had been listed on 1 May, but on 31 October a letter was sent from the Registry to the solicitors for the respondents advising that the matter had been relisted to commence on 5 June.

On 5 December the respondents' solicitors asked the applicant's solicitors to consent to an adjournment of the case to accommodate the respondents' counsel and the second respondent who, it was said, was required to be in the United States during the two week period for which the matter had been listed. This request was refused by a letter dated 12 December 1989 and it was suggested that the respondent apply to the Court. There was a conference before the Registrar on 15 February 1990 at which it

was evidently hoped to persuade him to vacate the dates. The	present motion was not filed until 29 March 1990. It is now eight
weeks to trial. In the circumstances, I am not satisfied that the respondents have made a case for the presently listed dates to be vacated. The Court's calendar cannot be governed by counsells availability, although that is obviously a matter which will be taken into account where possible.
AS to the matter of a separate trial on the issue of liability this is the first time that it has been raised formally. In his affidavit in support of the motion so far as it relates to that question, the respondentsf solicitor has said:

"The claim by the Applicant involves consideration of wide and complex economic issues involving the operation of the international and domestic airline industry and market forces. It is respectfully submitted that those issues would most conveniently be determined in the first instance."

In my opinion it is too late in the day to re-organise the mode of the trial of the action. In any event on the material before me, I am not satisfied that the issue of damages is conveniently severable from the general issues of an economic character going to liability. Nor am I satisfied that the issue of damages would involve more than one or two days of the total hearing time. In the circumstances the motion will be dismissed.

I certify that this and the preceding
two pages are a true copy of the

Ex Tempore Reasons for Judgment of his

Honour Justice French.
Associate:	C G
Date:

UPrd 1970

Counsel for the Applicant: Mr C. Colvin

Solicitors for the Applicant: Robinson Cox

Counsel for the Respondents: Mr A. Fenbury

Solicitors for the Respondents: Turner Freeman by their agents,

Slater & Gordon

Date of Hearing:	5 April 1990
Date of Judgment:	5 April 1990