Temwell Pty Ltd v DKGR Holdings Pty Ltd

[2003] FCA 1222

FEDERAL COURT OF AUSTRALIA

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1222

TEMWELL PTY LTD (ACN 082 656 157)  -v-  DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616),  mCOM SOLUTIONS INC, DRAGON VENTURES. COM INC, mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950), DAVID HAINS, ROBERT VAN ZANTEN, DRAGONVENTURES.COM LTD, RICHARD HAINS  and  IAN MORRIS KIEFEL

AND

mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) v  TEMWELL PTY LTD (ACN 082 656 157), SLADEMERE PTY LTD (ACN 082 656 139), SHEPRIDGE PTY LTD (ACN 082 696 077), GEOFFREY MICHAEL TAUBER, MORRY FRAID, ROGER ENRIQUEZ

V 663 of 2000

RYAN J

30 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 663 of 2000
BETWEEN:	TEMWELL PTY LTD (ACN 082 656 157) Applicant
AND:	DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616) First Respondent
mCOM SOLUTIONS INC. Second Respondent
DRAGON VENTURES. COM INC Third Respondent
mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Fourth Respondent
DAVID HAINS Fifth Respondent
ROBERT VAN ZANTEN Sixth Respondent
DRAGONVENTURES.COM LTD Seventh Respondent
RICHARD HAINS Eighth Respondent
IAN MORRIS KIEFEL Ninth Respondent
AND BETWEEN:
mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Cross-Claimants
AND:
TEMWELL PTY LTD (ACN 082 656 157) SLADEMERE PTY LTD (ACN 082 656 139) SHEPRIDGE PTY LTD (ACN 082 696 077) GEOFFREY MICHAEL TAUBER MORRY FRAID ROGER ENRIQUEZ Cross-Respondents

JUDGE:	RYAN J
DATE:	30 OCTOBER 2003
PLACE:	MELBOURNE

REASONS FOR RULING (NO 11)

1. In my view it would be an inappropriate exercise of the Court's discretion to accede at this stage to an application for an adjournment of the case.  As I have indicated in the course of discussion this afternoon, particularly with Mr Golvan SC, the refusal of the adjournment cannot preclude the applicant from making application on proper material for leave to re-open its case.  That can be done at any time up to judgment, and the application for leave would be decided in accordance with principles which are well-known.  The considerations which influence the Court's discretion in matters of that kind include prejudice or disadvantage to the other side, and whether the omission resulted from inadvertence or deliberate choice by Counsel or some other factor, either militating for or against the exercise of discretion.

2. If such an application ever be made, it may be a matter which enures to the benefit of the applicant that the application has been foreshadowed as early as today.  But in the absence of any clear indication of what the further evidence is, it seems to me to be an inappropriate exercise of the Court's discretion to grant an adjournment which would delay the case from proceeding tomorrow.  I apprehend, of course, that not a great deal of progress may be made tomorrow in any event, but account has to be taken of the preparation by the respondents for the hearing of their case, which, if it were not to commence tomorrow, would commence on 10 November.   I consider that they are entitled to apply themselves to that preparation on the assumption that the applicant's case will remain as it presently is.

3. No doubt if that assumption is changed, or proposed to be changed, that will have a bearing on the disadvantage or prejudice to which the respondents may wish to point.  I have also taken into account the need of the respondents to plan the order of calling witnesses in their case, particularly having regard to the fact that some of those witnesses are required to travel from overseas because of the inability to accommodate them by agreement by video-link hearings.  For these reasons, I refuse the application for the adjournment, but I say nothing further at this stage about any application which may be made, as I said, on some or better, material for leave to re-open the applicant's case.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            30 October

Counsel for the Applicant and Cross Respondents:	Mr C D Golvan SC with Dr S Ricketson
Solicitors for the Applicant and Cross Respondents:	Meerkin & Apel
Counsel for the mCom Respondents and Cross-Claimants:	Mr J L Sher QC with Mr J Delany
Solicitors for the mCom Respondents and Cross-Claimants:	Minter Ellison
Date of Hearing:	30 October 2003
Date of Ruling:	30 October 2003