Tomlinson, P.J. v Cut Price Deli Pty Limited

[1993] FCA 21

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JUDGMENT No. ........ ..... .... ..... ..... 1 13

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 72 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: PETER JOHN TOMLINSON and

JEAN TOMLINSON

Applicants

AND :  CUT PRICE DEL1 PTY. LIMITED

First Respondent

AND :  ENZO SGAMBELLONE

Second Respondent

AND :  HARRY MALOVANY

Third Respondent

AND:  PETER HOEFLER

Fourth Respondent

AND:  RON HARMER

Fifth Respondent

AND :  CUT PRICE DEL1 PTY. LIMITED

Cross Claimant

AND:  PETER JOHN TOMLINSON and
JEAN TOMLINSON

Cross Respondents

2 . The matter be adjourned to the Registrar.

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	2 February,
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1. The trial dates be vacated.

X.

1. The applicants pay to the respondents one-third of the respondents ' costs, to be taxed, occasioned by the adjournment.

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

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 72 of 1991
DUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

BETWEEN:  PETER JOHN TOMLINSON and
JEAN TOMLINSON

Applicants

AND:  CUT PRICE DELI PTY. LIMITED

First Respondent

AND :  ENZO SGAMBELLONE

Second Respondent

AND :  HARRY MALOVANY

Third Respondent

AND :  PETER HOEFLER

Fourth Respondent

AND :  RON HARMER

Fifth Respondent

AND:  CUT PRICE DELI PTY. LIMITED

Cross Claimant

AND:  PETER JOHN TOMLINSON and
JEAN TOMLINSON

Cross Respondents

Coram:	Drummond J
Date :	2 February, 1993

Place: Brisbane

EX TEMJ?ORE REASONS FOR JUDGMENT

Proceedings commenced before me today with a request by counsel for the applicants for the matter to be stood down for one day to enable some written material to be obtained from Mr. Tomlinson to answer some material that had come from the respondents. That was quickly changed to a request to stand the matter down for a couple of days and then, ultimately, it became a submission that the matter should be stood down for a week to enable what is quite apparently a major task of preparation to be carried out on the part of the applicants.

All that takes place against this background. The court was told nearly 12 months ago that the action was ready for hearing. In fact, in the course of a directions hearing in September of last year, complaint was made by counsel then appearing for the applicants that they had not yet been given a trial date although the matter was ready for hearing. Because of the fact that this matter had been, according to what the court was then told, ready for trial for a long period of time but, unfortunately, had not been allocated a trial date, special arrangements were made to give it an early hearing date. The case was given priority in that regard over a large number of other cases which have been awaiting trial for a long period of time also. The parties were told over

three months ago that this case would be the first case to be

heard at the commencement of the new law year in 1993, i.e. ,

today. Thirty court days were set aside to ensure, on the estimates given by counsel, that the matter could be heard and completed in that particular period of time.

Directions were given on 18 November, 1992 and some
further supplementary directions on 16 December, 1992 to
ensure that the parties would be prepared for trial and the

trial would run in an expeditious and efficient manner. On 18

November, 1992, the solicitor for each party was directed to complete a standard form certificate of readiness and to file it in the registry and serve a copy on the opposing party by 20 January, 1993. Other directions were given which included a direction that, if the matter was not ready to proceed for trial, it was to be relisted for directions on Wednesday, 30 December, 1992.

In response to the direction for the filing of certificates of readiness by the solicitors for all parties, the solicitor for the applicants filed a certificate dated 20 January, 1993 in which, in paragraph 4(d), he said without qualification:

"The action is in all respects ready for trial."

That needs to be read, however, with paragraph 2(a),

which said:

calculation of which is to be formulated after a	"The applicants seek damages, the total and
further report from the applicants' accountants."

Apart from that one indication that all was not in order on the applicants' side, the court was told on 20 January, 1993 in a certificate, specifically required to be filed by the solicitor for the applicants, that the action was in all respects ready for trial.

In the corresponding certificate filed by the solicitor for the respondents, the solicitor stated in paragraph 4(d) and (e) that the respondents had received a request to provide some additional material relevant to their own expert's report, which request was presently being addressed, but otherwise that "the action is in all respects ready for trial".

It quickly became apparent that, contrary to every endeavour made by the court in the directions that have been given, including the directions requiring the solicitors for the parties to turn their attention specifically to the question of whether the matter was in all respects ready for trial by 20 January, 1993 and to certify to the court accordingly, the action, certainly on the applicants' side, is nowhere near ready to proceed to trial. Hence the application that the matter be stood down for a week, in the hope, as I understand it - and I put it no higher than that - that the applicants will then be able to present their case.

Some indication of the wholly unprepared condition of things on the applicants' side can be gathered from the following matters. It emerged in the course of argument that significant and extensive affidavits were filed on behalf of the respondents over 12 months ago. They have not been answered by the applicants even now. Of even more significance, as indicating the wholly unprepared state of things on the applicants' side, was the frank admission made by counsel for the applicants - who was retained only late in the piece, as I understand things - that he was not in a position now to open the evidence he would call from Mr. Tomlinson, his major witness on liability, if he were to be permitted, contrary to what was intended by the directions given in November last, to lead Mr. Tomlinson's evidence orally. He simply does not know what his main witness on liability will say. It is also significant that a further report has been provided by the applicants' accountant, Mr. Calabro, who has had the responsibility for quantifying the damages claim. The claim has been increased from the $148,000.00 originally claimed in his report to $317,000.00. This takes place against the background of an assurance on 16 December, 1992 that there would be no change to Mr. Calabro's report, and against the background of the interlocutory

judgment I gave on 18 November, 1992, which must have alerted the applicants and their advisers, if they were giving any attention whatsoever to the litigation, to the need to look carefully to the quantification of their claim and to the need

to look at whether there was any basis upon which it might	properly be increased.
No serious attempt, it seems to me, has been made on the applicants' side to prepare the case over the past two months. Counsel for the applicants initially stated that he could not give any assurance that, even if the week's adjournment now sought were granted, he would be ready to proceed. He expresses a degree more optimism on that point, however, now. But it seems to me that, given the magnitude of the task that has to be undertaken on the applicants1 side in getting the matter ready for hearing, it is highly unlikely that they will be able to do, even if I were to grant them the week's adjournment, what they seem to have been unable or unwilling or uninterested in doing over the past two months.
The lack of concern on the applicants' side about their responsibility for having brought this litigation and their responsibility for preparing it to ensure that it would be ready for hearing today is further demonstrated by what I have had to say about the certificate of readiness that was filed by the solicitor for the applicants on 20 January, 1993 and by their complete failure to give the court any warning that there might be difficulties in the case running until counsel got up this morning and it emerged, in the course of some of his early submissions, that there were indeed grave difficulties for the applicants in running their case.
The respondents themselves are not free, by any means, of blame. They have been in breach of directions given by the court designed to ensure that the matter would be ready for trial in efficient fashion today. Moreover, notwithstanding the lack of witness statements from the applicants, which, despite the submissions that were made in reliance upon the letter which is exhibit "A", it is clear the respondents must have known would be forthcoming sooner or later from the applicants, the respondents did not see fit to draw to the court's attention the fact that there were likely to be difficulties in the case running on the appointed date due to serious defaults which the respondents must have realised the applicants were then guilty of.
However, so far as I can gauge, subject to that significant comment, the respondentsr case appears to be generally ready for trial, at least to the extent it can be in the absence of their remaining ignorant of a large part of the applicants' case.
An attempt was made by the applicants to justify their inability to run the case now by reference to this late delivery of material by the respondents. But no attempt has been made by the applicants to respond to a mass of significant material, to which I have already made reference, which they have had for over a year from the respondents to which they need to respond before they can hope to be ready for trial. The preparation or the ascertaining of this
response will form part of the task that counsel for the
applicants would have to undertake if he were to be granted
the week's adjournment that he seeks. Moreover, as I have said, there has been no complaint by the applicants to the court prior to this morning that any late delivery of material coming from the respondents has been productive of difficulties for them in being ready for trial. The complaints that are now made ring somewhat hollow against that background of a complete lack of indication to the court that there were potential difficulties looming.
Other cases can be heard in the time remaining of the period allocated to this case. Other cases that have been awaiting trial for substantial periods of time can be slotted into the time which will become available in the event of the hearing date for this trial now being vacated.
It is said, as I have mentioned a number of times, that if a week's adjournment were granted the applicants would be able to do what they have not chosen or been able to do in the past two months. My assessment of things is that this case shows all the signs of one that, being cobbled together on the run on the applicants' side, will be expected to run with many interruptions, with many adjournments and, generally, in a most inefficient and protracted manner. My assessment is that it is highly unlikely, given the nature of the litigation and the scope of the issues in the litigation
at least from the respondents' side, that in the time that and the voluminous evidence that can be expected to be called
would remain, and given what I anticipate to be the inefficiencies that will occur in the presentation of the applicants' case, this matter will be completed in the time allocated. If the matter had been properly prepared, I have every confidence the matter would have been completed in that time.
If I were, therefore, to start this hearing now, it will mean that cases awaiting hearing will not get an opportunity to be heard. It will also mean that the hearing of this case will be adjourned part-heard and will have to resume much later in the year. I do not think that there is any justification for sharing the optimism that counsel for the applicants most recently adopts when he says that, if only he has a week, he will be able to put the applicants' house in order. I propose, therefore, to vacate the trial date that has been allocated to this trial and to adjourn the matter to the Registrar.
I certify that this and the preceding eight pages is a true copy of the reasons for judgment herein of the
Honourable Mr. Justice Drummond.
Associate:  &b"lW
Date :  2 February, 1993