Trimcrest P/L v Bayfield Hotels P/L

[1993] FCA 702

JUDGMENT No. ........ ........ .. ......,,.... 702 1 9 3

I N THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 380 of 1 9 9 1

GENERAL DIVISION 1

Between:  TRIMCREST PTY LIMITED

Applicant

And :	BAYFIELD HOTELS PTY LIMITED
h ANOR

Respondent

EX T W O R E JUDGMENT

EINFELD J SYDNEY 19 JULY 1 9 9 3

For something like an hour and a half this afternoon, argument has taken place about whether an affidavit of a Mr Politis tendered for the applicant should be admitted into evidence and his evidence permitted to be taken. At times the argument has made me feel that it might be a little less comfortable and traditional justice but it might be a good deal more effective and efficient justice to have court cases sometimes conducted by benevolent dictators rather than by people complying with rules which let everybody have their say ad absurdum.

the parties to be finalised. I will not delay now to go back	into the history of the matter but I may do so at some later time
to illustrate the way in which the applicant has, in these proceedings, been severely recreant in relation to compliance with court orders and directions for the filing of evidence and in other ways.
In this instance as in many, perhaps all, of the previous occasions, the delay has been caused by the applicant's lawyers. The difficulty about refusing late evidence in such circumstances is that it is the client's case which would be impeded. This is the case which has to be allowed to be presented and which is before the Court for determination. This particular case is even somewhat more complicated because the applicant is now in liquidation and the case is being conducted by a receiver who is presumably there for the purpose of looking after the interests of those who put him there and to some extent of other creditors of the company.
Hence it is not just a question of determining where the justice lies between two parties or three parties in the proceedings but
where the justice lies between those in whose name the applicant is now bringing the case and the respondents. Negligence or
other fault on the part of those who are responsible for breaching the orders and directions of the Court setting down timetables does not easily fit into an argument about doing justice to the people in whose name the applicant's case is now being conducted.

The situation arises because Mr Politis, who is a director of the applicant company, lives in France and is only rarely in Australia, came to the case very long after orders had been made, by three judges of the court at least, for all the evidence of

On the other hand, if Court rules, orders and directions are to mean anything at all, the parties simply have to comply with them or their failure to do so must be at their own cost and risk. This is not just a question of legal costs but of other penalties, the least of which would be that the defaulting parties will ultimately not be able to present the whole of their cases.

I personally do not find it particularly attractive to have to give lectures about the general public interest in relation to the courts. This case is before the Court. It is set down for three weeks. It is likely to take longer. The addition of one witness will not, as it seems to me, materially affect that period of time and therefore deprive other litigants and the public at large from the use of the Court. Thus it is not appropriate to wax lyrical about the relationship between the calling of this evidence and other litigants in the Court list. But if a court provides, at significant public expense, the fairly luxurious facility of judges doing the case management,

orders as they would be of any administrative officer's ruling,	and then finds that the parties are as contemptuous of a judge's
there is little point in persisting with the present system and judges could be released to do much of the delayed work of the Court.
As I mentioned in argument, the prospect of sending lawyers or whoever else is to blame to gaol for contempt of court orders is not appealing although it ought not to be regarded as completely

off the agenda in a blatant case. There is no particular reason why a court order in respect of the filing of documents ought to be treated any less seriously than court orders of other kinds.

However, the question that has to be determined here is whether the taking of Mr Politis' evidence would, other than in relation to costs which can clearly be compensated for by appropriate orders, cause such a prejudice to the respondents and is such an affront to the Court's previous orders by way of case management as to require that it be excluded. I find this dilemma quite a difficult one in this case. I normally take the view that a litigant comes before the Court to present a case once and once only. It is unreal to believe that it could do so in parts or that it could generally be allowed to exclude important evidence. On the other hand, if there are rules and orders of the Court for the presentation of evidence and, notwithstanding those orders, parties can come along after times fixed and get any evidence added in in defiance of what was ordered, we might as well not have the rules and orders in the first instance and merely make	provision that a party may always file late evidence subject only	to orders for costs.
That is not the way the Court operates at the present time. In this as in many other cases, there is a clash between proper case management, court orders and the proper and efficient conduct of litigation on the one hand, and the justice required by the particular case and parties as a whole.
I am not satisfied that much of the evidence of Mr Politis as contained in the affidavit is actually relevant or will actually turn out to be probative of very much at all. He clearly was not the person in the applicant company who was responsible for its investment in the Narrabeen Sands Hotel. He clearly was not the person who gave consideration to and had available to him the records and figures which are now attacked as the basis or one of the major bases of the claim. His view and his reliance upon any such figures must be regarded as being, to put it at the highest, of a minor kind.
The respondents say that they are prejudiced in a number of ways.
I am not impressed by their claim that they have "come here to
fight one case and are now being required to fight another". It is overstating the importance of Mr Politis' evidence to put it aa high as that. On the other hand, they also claim that there is documentation which Mr Politis' affidavit and other evidence have brought to attention with which they should be armed, or have been armed, in order to cross-examine him properly. I think
necessary to hear the evidence. At present I have difficulty that in order to assess the nature of any such prejudice it is
seeing that his evidence is such that a significant amount of hidden documentation not yet revealed is in the category suggested for it but, in the course of his evidence, that position may change.
This case has a large amount of documentary material. It is not at all unlikely that Mr Politis had some papers at various stages in the proceedings or in the earlier negotiation stage, but judging from his affidavit, they do not seem to have been likely to be anything particularly more than is already available and certainly not anything particularly different to what is already available. What I therefore propose to do is to allow his evidence to be taken on the voir dire, so that I can consider it overall and determine whether if it were admitted it would be at the irrevocable and irreversible prejudice of the respondents.
I will require counsel for the applicant to ask questions of
Mr Politis in chief to identify the documents which he has or has had as if he were giving an affidavit of discovery so that respondents' counsel will have a full opportunity to cross- examine. The question of costs lost by the late supply of Mr Politis' affidavit will be reserved until a later stage in the case.

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