The Ani Corporation v Celtite Australia Pty Ltd

[1990] FCA 836

836      40

JUDGMENT NO. . . . ) . . . .

*... ,.,. . NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOU TH WALES DISTRICT REGISTRY ) NG 680 of 1989

1

GENERAL DIVISION 1

BETWEEN: THE AN1 CORPORATION

LIMITED

First Applicant

AND :  C ! .

Second Applicant

AND :	-	C
LIMITED Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 14 June 1990

EX TEMPORE REASONS FOR JUDGMENT

*r/	In this matter a date for an urgent hearing was fixed late last year. That was done following upon interlocutory proceedings in which the applicants sought an interlocutory injunction and the respondent resisted it on various grounds, including contentions as to the balance of convenience and a contention that the proceedings had been brought after significant and substantial delay. What was done was to direct an urgent hearing, and to give directions as to the filing of evidence in order to enable the urgent hearing to
take place.
The applicants, it seems to me, were always on notice that they were required to file their own evidence, either in time or substantially within time. Certainly, complaints at directions hearings that the consequence of their delay might well be an application such as the application which has now been made were aired from a very early date. There has admittedly been very great delay on the applicants1 part in the filing of crucial evidence. The real question, it is
L	agreed by both sides, is whether the respondent can fairly be called upon to meet the applicants' case in the time which has been left. It does seem to me, however, that criticism, which has been made by Mr Sweeney, for the applicants, of the respondent's evidence concerning its difficulties, ought to be somewhat muted by reason of the fact that the applicants themselves have created the difficulty.
The main issue is the wide-ranging evidence of Professor Cherry. Despite the applicants' knowledge that it was vital
L	to file his evidence, in particular, promptly, and that, for the whole of the period during which his evidence was being
prepared, they were already outside the times originally
directed, it was nevertheless delayed from at least some time
in February until the beginning of May. Mr Catterns says that may be taken as a measure of how long might fairly be required for the respondent's experts to answer such evidence. I accept that the use of such a measure is somewhat rough, and that one has to look also at the other evidence bearing on the question of how long it will take, but that other evidence includes evidence indicating that important experts of the respondent were absent from Australia at times which became vital, as I see it, only because of the delay in the filing of Professor Cherry's evidence.
I think, in assessing the situation, I should as Mr Catterns submits, take into account the principle that justice should not only be done but appear to be done, and that there
L	would be an appearance of injustice if one party, called upon to answer evidence assembled with deliberation and care, and over a long period, by the other, were then required to answer it within an extremely short space of time.
Mr Sweeney put it that really it comes down to a balance of inconvenience, and that there are inconveniences imposed upon the respondent by the lateness of Professor Cherry's evidence. But it seems to me that these issues go beyond convenience. He also relied on the fact that the early
L.	hearing was intended to replace whatever rights his clients had in respect of interlocutory relief, but I think the answer
to that is that it was intended to do so on a condition which the applicants have not complied with.
The respondent has undertaken to keep accounts and undertakes to continue to do so. It is a case where the evidence indicates that there were, at any rate, substantial matters which may have resulted in interlocutory relief being refused had the interlocutory application proceeded. It is also a case which, it would now appear, is likely to last substantially longer than was originally predicted by the parties, so that adjournment before it could be finished, if it is not now adjourned, is in any event a very likely outcome.
I accept that as a fact the respondent is unlikely, on all the evidence, to be able to prepare its case fully, and I think the discretionary factors, on balance, point to the
i.
conclusion that I should grant the adjournment sought. Accordingly, I do vacate the hearing date presently fixed.
There are, however, some incidental matters in respect of which it may be possible to mitigate the effects of the adjournment and I will hear you on those, Mr Sweeney.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of Mr Justice Burchett.

Associate: