W.L. Mack Engineering Pty Ltd v Australasian Pipe & Tube Pty Ltd

[1991] FCA 341

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG141 of 1991
GENERAL DIVISION

BETWEEN :  W.L. MACK ENGINEERING PTY
LIMITED

Applicant

AND :  AUSTRALASIAN PIPE & TUBE PTY
LIMITED

Respondent

17 June 1991

REASONS FOR JUDGMENT

LOCKHART J.

This matter was listed for directions before another Judge of this Court on 23 and 24 April last. On 24 April each party was represented by counsel; counsel who then appeared for the applicant still appears for it. Counsel who then appeared for the respondent no longer appears. Counsel, in fact, came to Court to-day with his instructing solicitor (who, until certain events of this afternoon was the solicitor on the record for the respondent) and informed me that their instructions had been withdrawn by the respondent. In the result the solicitor previously acting for the respondent filed a notice of ceasing to act and it is plain that this was done pursuant to order 45, rule 6.

However, both counsel and solicitor previously acting for the respondent were good enough to attend at my reguest more than once during the course of to-day and this has assisted me in

taking the course which I propose to take. The case is one which, on the pleadings, is of some complexity; it involves, amongst other things, a claim by the applicant for damages and in detinue, seeking amongst other things the return of certain goods.

In the ordinary course, where a respondent fails to appear on the day appointed for the final hearing, the plaintiff would be entitled to prove his case on an ex parte basis, and any defence or cross claim of the respondent would not be considered by the Court in the absence of the party asserting them.

The position today is in substance no different, save that on 24 April the Court in the directions hearing previously mentioned ordered that the hearing today be confined to the questions of representations by any party to the proceeding and the terms of any alleged contract between them. This order was obviously made on the basis that the case would proceed with both parties being present in Court.

proceed in the circumstances to simply hear the applicant's claim It would, I think, be technically open for the Court to	for principal relief, and dismiss the cross claim, and in hearing
the applicant's claim hear all issues asserted by the applicant, including its claim for damages and its claim for return of goods, as well as any initial question of determining the making of representations or not. But I think the proper course for the Court to take is the following. I should hear the applicant's whole case, including the question of damages and return of goods. I should determine finally, when giving judgment, the questions relating to the making of representations and the terms of any alleged contract and make any necessary orders or declarations; but refrain at that stage from formally
entering judgment by way of damages or orders for the return of - -.
goods until the passing of fourteen days after service upon the respondent of documents informing it of this course of action. The matter may then be relisted by 'either party, and, in the absence of any further appearance by the respondent in the meantime, the plaintiff would be entitled to its final relief, thus bringing the litigation to an end.

I certify that this and the

preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 17 June 1991

Counsel for the Applicant	J. Svehla
Solicitors for the Applicant :	Walls & Rodriguez
Counsel for the Respondent	F. Curtis (instructions withdrawn)
Solicitors for the Respondent :	Stuart & Mills (instructions withdrawn)
Date of Hearing	17 June 1991
Date of Judgment	17 June 1991