Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 3)

[2012] FCA 110

FEDERAL COURT OF AUSTRALIA

Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 3) [2012] FCA 110

Citation:	Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 3) [2012] FCA 110
Parties:	TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER
File number:	NSD 120 of 2011
Judge:	EMMETT J
Date of judgment:	7 February 2012
Date of hearing:	7 February 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Counsel for the plaintiff:	The plaintiff did not appear
Counsel for the defendants:	CRC Newlinds SC, P Kulevski
Solicitor for the defendants:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 120 of 2011

BETWEEN:

TRANSPACIFIC PTY LTD ACN 073 644 612
Plaintiff

AND:

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
First Defendant

DAVID JOHN WINTERBOTTOM
Second Defendant

DAVID PAUL MERRYWEATHER
Third Defendant

JUDGE:	EMMETT J
DATE OF ORDER:	7 FEBRUARY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The plaintiff’s interlocutory application dated 7 November 2011 be dismissed with costs.

2.The plaintiff’s interlocutory application dated 25 November 2011 be dismissed with costs.

3.The proceeding be listed for directions before Emmett J at 9.30am on Friday, 17 February 2012.

4.The defendants be granted leave to file an interlocutory application for summary dismissal, returnable before Emmett J on 17 February 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 120 of 2011

BETWEEN:

TRANSPACIFIC PTY LTD ACN 073 644 612
Plaintiff

AND:

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
First Defendant

DAVID JOHN WINTERBOTTOM
Second Defendant

DAVID PAUL MERRYWEATHER
Third Defendant

JUDGE:	EMMETT J
DATE:	7 FEBRUARY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me two interlocutory applications filed by the plaintiff.  One motion was filed on 7 November 2011 and sought a number of directions and orders concerning the preparation of the proceeding for trial.  Specifically, it sought orders that certain orders previously made by Stone J be vacated, directions for the filing of an application for leave to file an amended statement of claim, and directions relating to the filing of evidence.  The application also sought orders for discovery.  The second application, filed on 25 November 2011, sought orders that the statement of claim be filed, and that the defendants file defences. 

2. The proceeding has had a somewhat chequered career.  It was fixed for hearing before Stone J in October 2011.  Her Honour subsequently vacated that hearing and gave detailed directions for the preparation of the proceeding for final hearing.  Leave to appeal from certain of her Honour’s orders was sought by the plaintiff.  Ultimately, no variation was made to the orders made by Stone J.  It was against that background that the two interlocutory applications came before me as List Judge in December.  At that time, I fixed them for hearing today.

3. When the applications were called on for hearing this morning, there was no appearance for the plaintiff.  The solicitors who had appeared for the plaintiff before me in December had filed a notice of intention to withdraw and subsequently filed a notice of ceasing to act.  In the circumstances, I consider that it is appropriate to accede to the application by the defendants for the two interlocutory applications to be dismissed.  Accordingly, I propose to order that the applications be dismissed with costs. 

4. The question then remains as to the future conduct of the proceeding.  In the circumstances, it may be appropriate for the defendants to apply for summary dismissal of the proceeding, and senior counsel for the defendants has indicated that they wish to take that course.  Accordingly, I propose to give leave to the defendants to file an interlocutory application for summary dismissal of the proceeding, returnable before me on 17 February 2012.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 20 February 2012