Tru Floor Service Pty Ltd v Jenkins (No 3)

[2006] FCA 738

FEDERAL COURT OF AUSTRALIA

Tru Floor Service Pty Ltd v Jenkins (No 3) [2006] FCA 738

TRU FLOOR SERVICE PTY LTD, PAUL ANDREW FLETCHER, VICKIE ANNE FLETCHER, COMPLEX AIR CONDITIONING PTY LTD, A P DELANEY & CO PTY LTD, KIEWA VALLEY ENGINEERING PTY LTD, C & C PRZIBELLA PTY LTD, TORNEY & ALLEN PTY LTD and EXVON PTY LTD v DAVID JOHN JENKINS and VIVIENNE ELLEN JENKINS

VID 3021 OF 2001

SUNDBERG J
10 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 3021 OF 2001

BETWEEN:

TRU FLOOR SERVICE PTY LTD
(ACN 056 201 631)
First Plaintiff

PAUL ANDREW FLETCHER
Second Plaintiff

VICKIE ANNE FLETCHER
Third Plaintiff

COMPLEX AIR CONDITIONING PTY LTD
(ACN 064 927 939)
Fourth Plaintiff

A P DELANEY & CO PTY LTD
(ACN 000 297 549)
Fifth Plaintiff

KIEWA VALLEY ENGINEERING PTY LTD
(ACN 005 311 286)
Sixth Plaintiff

C & C PRZIBELLA PTY LTD
(ACN 004 716 901)
Seventh Plaintiff

TORNEY & ALLEN PTY LTD
(ACN 000 759 106)
Eighth Plaintiff

EXVON PTY LTD
(ACN 054 370 357)
Ninth Plaintiff

AND:

DAVID JOHN JENKINS
First Defendant

VIVIENNE ELLEN JENKINS
Second Defendant

JUDGE:

SUNDBERG J

DATE:

10 MARCH 2006

PLACE:

MELBOURNE

RULING

1. On 8 March 2006, the eighth day of the trial of this proceeding, the plaintiffs sought leave to file and serve an affidavit of Cheryl Mann sworn on 7 March.

2. My ruling on that application was in the following terms.  Ms Mann gave evidence on 2 and 3 March.  Her evidence was lengthy and she was cross-examined extensively.  She lives in Alice Springs in the Northern Territory and is currently visiting her family at Leeton in New South Wales.  The material exhibited to the affidavit consists of about 22 financial documents retrieved by Ms Mann from Chick Vic's computer system on 6 March.  There was no explanation as to why these documents could not have been retrieved at a much earlier date so that they could have been put to Ms Mann and Mr Chamberlain while those witnesses were available for cross-examination.  In the circumstances, I refused to receive the affidavit.

3. Yesterday, the ninth day of the trial, the plaintiffs sought to re-open the matter – again applying for leave to file and serve Ms Mann’s affidavit.  To that end, they also sought leave to file and serve other affidavits in an attempt to provide the explanation referred to earlier.

4. I have read Ms Mann’s affidavit and the further affidavits.

5. The defendants opposed the re-opening of the matter.  Counsel indicated that three witnesses would have to be recalled for cross-examination if the documents were received.  They were Ms Mann, Mr Chamberlain and Mr Lamb.  Mr Lamb gave expert evidence early in the trial and he too was cross-examined at length.  I have taken this potential dislocation of the proceedings into account in declining to allow the matter to be re-opened.

6. I have, over frequent objections by the defendants, acceded to various requests by the plaintiffs to supplement the record and rely on last minute affidavits.  I have extended considerable latitude to the plaintiffs in other respects.  A week before the trial commenced I permitted them, over strenuous opposition by the defendants, to heavily amend their statement of claim and file a very lengthy reply some two years out of time.  See Tru Floor Service Pty Ltd v Jenkins [2006] FCA 119.

7. It is, in my view, unreasonable for the plaintiffs and unfair on the defendants on the eighth day of the trial to unsuccessfully seek to rely on Ms Mann’s affidavit and on the ninth day to seek to re-open the matter the subject of the adverse ruling the day before.  It may be that the latitude I have extended to them led the plaintiffs to expect that I would endlessly accommodate them.

8. In the circumstances described, my reserves of accommodation are, at least for the present, exhausted.  The application to re-open the matter is refused.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Sundberg.

Associate:

Dated:             14 June 2006

Counsel for the Plaintiffs:	J Delany SC with J Barber
Solicitor for the Plaintiffs:	James G Sloan
Counsel for the Defendants:	C Gunst QC with M McNamara
Solicitor for the Defendants:	Pryles & Co
Date of Application:	9 March 2006
Date of Ruling:	10 March 2006