W M Ritchie (Aust) Pty Ltd v Sandler Leathergoods Pty Ltd

[1999] FCA 768

FEDERAL COURT OF AUSTRALIA

W M Ritchie (Aust) Pty Ltd v Sandler Leathergoods Pty Ltd [1999] FCA 768

W M RITCHIE (AUSTRALIA) PTY LTD & ORS V

SANDLER LEATHERGOODS PTY LIMITED & ORS

NG 529 OF 1998

TAMBERLIN J
SYDNEY
3 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 529 OF 1998

BETWEEN:	W M RITCHIE (AUSTRALIA) PTY LTD & ORS Applicants
AND:	SANDLER LEATHERGOODS PTY LIMITED & ORS Responents
JUDGE:	TAMBERLIN J
DATE OF ORDERS:	3 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant on the Motion pay the costs of the respondent on the Motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 529 OF 1998

BETWEEN:	W M RITCHIE (AUSTRALIA) PTY LTD & ORS Applicants
AND:	SANDLER LEATHERGOODS PTY LIMITED & ORS Respondents

JUDGE:	TAMBERLIN J
DATE:	3 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-Tempore Judgment

1. In this matter an application is made to vacate hearing dates for the matter.  A three day hearing is fixed for 3, 4 and 5 August 1999.  The dates were fixed on 9 April 1999 and the respondents, who were not present at the directions hearing, for reasons which are not apparent to me, were told of the hearing date in the afternoon of 9 April.  The application presently before me is dated 1 June 1999 which is two days ago.  There is no satisfactory explanation as to why the application was made so late in the day.  Had it been made earlier, there may have been some possibility of re-arrangements being made in order to get a date approximately around the time of those which have been fixed.  This is no longer possible due to the lapse of time.  Another hearing will not be possible for three or four months after the dates which have been set down.

2. This matter has had a long history and it's not appropriate at this stage to attempt to assign any blame to either of the parties, but the dates for hearing were fixed after a long series of non-compliances with directions in the matter.

3. The evidence filed today in the form of an affidavit by Bettina Evert does not give any convincing reason for, nor is it sufficiently detailed to enable a full examination of, the grounds for the application.  The affidavit does not establish any undue hardship or difficulty with the matter proceeding.  The only matter raised really is that the second and third respondents will be on vacation from 31 July until 18 August 1999.  This is not sufficient to warrant the disturbance of the dates which have been fixed and accordingly I dismiss the application.

4. I have been asked to make a special order as to costs.  I do not think it is appropriate that there should be indemnity costs, but I will order that the applicant on the Motion pay the costs of the respondent on the Motion, and I give leave to the respondent to have the costs taxed and to pursue those costs in the usual way.

5. I have heard some submissions on costs from Mr Macrossan but I am not convinced, notwithstanding those submissions, that the order ought be varied in any way.  Accordingly, I confirm the order which I have just made.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            3 June 1999

Counsel for the First Applicant:	A Bowne
Solicitor for the First Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	M Macrossan
Solicitor for the Respondent:	Fetter Gdanski
Date of Hearing:	3 June 1999
Date of Judgment:	3 June 1999