Waste Organic Recycling Management Systems (Australia) Ltd v Williams, Thomas
[1996] FCA 152
•5 FEBRUARY 1996
CATCHWORDS
Practice & Procedure - adjournment - whether proceedings should be adjourned to enable the correction of evidentiary deficiencies - whether an adjournment would be proper or productive of any different result - whether it is probable that the application could ever succeed - failure to put the proceedings into order regardless of considerable adjournment - failure not adequately explained
Practice & Procedure - affidavit - admissibility of - whether oppressive and embarrassing - whether it ought to be excluded from the court file - extraordinarily complex - argumentative - source of a number of hearing statements not specified
Practice & Procedure - joinder of parties - whether parties who are not respondents may be joined as cross‑claimants
Practice & Procedure - legal representation - whether an equal contest between lawyers in private practice - respondent represented albeit that he chose to act through his own corporate counsel rather than a lawyer in private practice
Federal Court Rules O 5 r 1, O 14 r 8.
WASTE ORGANIC RECYCLING MANAGEMENT SYSTEMS (AUSTRALIA) LIMITED v THOMAS WILLIAMS
NG 3631 of 1995
CORAM:Lehane J
PLACE:Sydney
DATE: 5 February 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG 3631 of 1995
BETWEEN:WASTE ORGANIC RECYCLING MANAGEMENT SYSTEMS (AUSTRALIA) LIMITED (A.C.N. 063 861 665)
Applicant
AND:THOMAS WILLIAMS
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:5 February 1996
MINUTE OF ORDERS
THE COURT ORDERS:
THAT the application for an adjournment be refused.
THAT the motion be dismissed.
THAT the persons named in the notice of motion as cross‑applicants pay the costs of the motion of the cross‑respondents named in the notice of motion, other than the fourth‑named cross‑respondent.
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 )
GENERAL DIVISION ) No. NG 3631 of 1995
BETWEEN:WASTE ORGANIC RECYCLING MANAGEMENT SYSTEMS (AUSTRALIA) LIMITED (A.C.N. 063 861 665)
Applicant
AND:THOMAS WILLIAMS
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:5 February 1996
EXTEMPORE REASONS FOR JUDGMENT
LEHANE J: I have before me a motion filed by the respondent to these proceedings and certain other parties apparently related to the respondent. The motion seeks the "joinder" of the respondent and those other parties as "cross‑applicants" and the hearing of these proceedings concurrently with two other sets of proceedings, numbers NG3630 of 1995 and NG3632 of 1995. There is also a prayer for joinder as cross‑respondents of a number of parties being, I think, principally directors of the applicant. There are then prayers for various relief in favour of the intended cross-claimants against the intended cross-respondents.
In support of the motion Mr Evans, appearing on behalf of the respondent and the parties seeking to become cross-claimants, sought to read his affidavit sworn on 18 January 1996. Counsel for the applicant objected generally to that affidavit on the
ground that it was oppressive and also embarrassing and submitted that it ought to be removed from the court file, or at least that it ought not to be admitted in evidence, under O 14 r 8 of the Federal Court Rules. Counsel for the applicant made additionally, or perhaps in the alternative, a number of particular objections to most of the paragraphs of the affidavit.
I think it is fair to say that Mr Evans has conceded that there are deficiencies, at least in form, in the affidavit, but I have not yet ruled formally on the admissibility of the affidavit as a whole or the admissibility of any particular paragraphs, or parts of paragraphs, of it. Following discussions during the course of the hearing Mr Evans has submitted that I should grant to his clients an adjournment in order to enable them to cure the deficiencies in the material as it stands and also to tender certain other evidence which it is said would support various of the prayers for interlocutory relief.
Counsel for the applicant opposes the grant of an adjournment for that purpose and submits that I ought to deal with the motion on the material before me today. He puts that on a number of grounds. One is that on any view and whatever might be tendered at an adjourned hearing, at least a substantial part of the relief claimed in the notice of motion would not in any event be granted. Counsel submits additionally that this is a case where the respondent and the intended cross-claimants are legally represented, that is to say, are not parties appearing in person, and that the latitude
one might extend in a case such as this to a party in person should not be extended to those parties.
Counsel also points to the additional cost and inconvenience which his clients would sustain were I to grant Mr Evans' application at this stage. Mr Evans says in reply that this is not an equal contest between lawyers in private practice, that there are substantial matters between the parties to be determined and that justice requires that in order to enable those matters to be properly determined I ought to grant him the adjournment he seeks so as to enable him to tender the evidence which he says is available to him in support of the relief claimed in the notice of motion.
It is apparent that there are very real difficulties with the notice of motion. The first difficulty is that it seeks to join, or at least to foreshadow the joinder, as cross‑claimants, of persons who are not at present respondents to the proceedings. Counsel for the applicant has submitted, and I think the submission is clearly right, that it is not competent for me to give leave for the joinder as cross‑claimants of those parties: see O 5 r 1.
Without going in detail to the various paragraphs of the affidavit, it is also quite clear that while no doubt it seeks to be comprehensive as to the matters said to be in issue between the parties, it is extraordinarily complex, is not by any means easy for one who has no prior knowledge of the circumstances to follow and contains much that is argumentative and a good deal of hearsay, which even on an interlocutory application
should not be admitted in the present circumstances because of failures to specify the source of a number of the hearsay statements.
It follows, from what I have said so far, that I could not grant the leave sought in paragraph 2 of the motion, which seeks the joinder of second, third and fourth cross‑claimants. As to the fourth and fifth prayers for relief, Mr Evans has tendered an extract from the material held by the Australian Securities Commission concerning the applicant which indicates the existence of a charge of the kind referred to in those prayers. It is also apparent, however, that the relation back period, as it was described in argument, in relation to that charge, has already come to an end; and there is, so far as I can see, nothing in anything that has been said to me or put before me today which indicates a legal basis on which any of the proposed cross‑claimants, but more particularly the respondent (the only party who could properly be joined as a cross‑claimant), should be granted relief of the general kind sought in paragraphs 4 and 5. Nor do I think, on the material before me and taking into account what has been said on both sides, that it would be proper for me or productive of any different result to grant an adjournment for the purpose of enabling further evidence to be given in relation to those two prayers.
As for prayer number 6, again, even assuming I admitted in full the affidavit of Mr Evans, I can see no basis on which I could or should make an order cast in the wide terms there contemplated or indeed any order of that kind. As counsel for the applicant described it, it takes the form of a rather wide Mareva injunction, and there
simply is no material before me or, I believe, foreshadowed, which would justify the making of an order of that kind.
Similar remarks may, I think, properly be made about prayers 7 and 8. Those prayers claim that the applicant, or persons acting on its behalf, have either interfered or threatened to interfere in an unlawful way with economic, particularly contractual, relations that the proposed fourth cross‑claimant has with other parties. Again, however, there is simply no material before me which in my view is capable of supporting a conclusion, even on an interlocutory basis, that there is a serious question to be tried in relation to the unlawful interference alleged and that is without even taking into account the proposition, clear as I have held it to be, that I cannot, in any event, authorise the joinder of that party as a cross‑claimant at all.
As for paragraph 9 which is a prayer for the provision of security for costs, as counsel for the applicant has pointed out, again an evidentiary basis is totally lacking. There is ample authority, including a good deal of authority in this Court, which establishes what the proper evidentiary basis for such an application is and I need not, I think, spend any more time on that.
As for prayer 10, which is a prayer for the delivery of certain documents, it may perhaps be possible in due course for a claim to be formulated, and evidence to be given in support of it, that the proposed fifth cross‑respondent has papers which are the property of one or other or some of the proposed cross‑claimants. But no such
material is before me, and such material as has been tendered does not encourage me to think it at all likely that the particular claim on the part of the first, second and third proposed cross‑claimants could be made out, even on an interlocutory basis. Certainly, it is not made out at present and, again, that is said without regard to the fact that the only proper cross-claimant in these proceedings is the present respondent.
Accordingly, in my view, a number of factors compel the conclusion that I ought not grant an adjournment for the purpose of enabling the respondent and its related parties to cure the deficiencies in the present motion and evidence. Principal among them is that, for the reasons I have given, I think that in large part it is probable that the endeavour could never succeed.
Secondly, I think it must be regarded as relevant that the respondent and its associated parties have acted through a lawyer, albeit that they have chosen to act through their own corporate counsel rather than a lawyer in private practice. I think I should also take into account the fact that although considerable time has elapsed between the day on which this matter first came before me, shortly before Christmas 1995, and today, nothing has been done to put the proceedings into what I would regard as something rather more like order.
I do not think that failure is adequately explained by the absences and other difficulties, experienced by Mr Evans, of which I was told.
For those reasons, I refuse the application for an adjournment.
I have still not formally dealt with the reception of the affidavit of Mr Evans. This perhaps need not be pursued further at this stage.
As the parties have indicated that they have no further submissions to make about the disposal of the motion, the orders which I make are that the motion is dismissed and that the persons named in the notice of motion as cross‑applicants pay the costs of the motion of the cross‑respondents named in the notice of motion, other than the fourth‑named cross‑respondent.
I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 27 February 1996
Heard: 5 February 1996
Place: Sydney
Decision: 5 February 1996
Appearances: Mr N Perram of counsel instructed by Heidtman & Co appeared for the applicant.
Mr D Evans appeared for the respondent.
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