Wenkart v Pantzer

[2004] FCA 1726

FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer [2004] FCA 1726

THOMAS RICHARD WENKART V WARREN PANTZER
NO. N 7051 OF 2002

JACOBSON J
22 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7051 of 2002

BETWEEN:	THOMAS RICHARD WENKART APPLICANT
AND:	WARREN PANTZER RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	22 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to vacate the hearing date is dismissed.

2.The applicant to pay the costs of the application made today.

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	N 7051 of 2002

BETWEEN:	THOMAS RICHARD WENKART APPLICANT
AND:	WARREN PANTZER RESPONDENT

JUDGE:	JACOBSON J
DATE:	22 DECEMBER 2004
PLACE:	SYDNEY

1. .This matter came before me today for directions.  However, Mr Gorczyca, solicitor for the applicant, made what is, in effect, an application to vacate the hearing date.  He put before me three considerations which he said ought to result in a vacation of the hearing date.  The first is that certificates of taxation of costs issued only very recently.  A certificate issued on 13 December 2004 but apparently Mr Gorczyca anticipated this would occur earlier.  The second consideration is really related to the first.  It is that Mr Gorczyca's client wants to appeal from the Taxing Master's certificate.

2. The third matter which Mr Gorczyca put to me is that, indeed, he received notice only very recently that there will be a further hearing before the Registrar to determine what seems to be additional costs and expenses that may be payable to the respondent.  The taxation is to take place on 29 December 2004 and the amount may not be known before the hearing. 

3. I am not the docket judge in this matter.  The proceedings have been listed for hearing before Branson J for two days on 17 and 18 January 2005.  Her Honour indicated at a directions hearing on 26 October 2004 that it is to be a final hearing on all issues.

4. Her Honour did reserve liberty to apply, in particular in case of serious difficulties as to the availability of witnesses.  It seems to me that nothing that has been put this morning by Mr Gorczyca is sufficient to persuade me that the hearing listed for 17 and 18 January 2005 ought to be vacated.  It was known on 26 October 2004, when her Honour listed the case for hearing, that the certificate of taxation had not issued.  I have been taken to some correspondence by way of background by Ms Nash, but have not read all of the material contained in a 45 page "Aide-memoire" to which she took me.

5. However, in a letter of 28 September 2004, the solicitors for the applicant wrote to the Taxing Officer and said in it that the applicant sought no further right of reply in relation to the question of verification or reasonableness. Whether or not that should preclude Mr Gorczyca's client from taking the steps which he has mentioned today is not a question for me to determine.  However, it is plain that nothing which has taken place since 26 October 2004 should come as a particular surprise to the applicant and I fail to see how it can raise issues which should prejudice the final hearing of the case in January 2005.

6. For those reasons the “application” to vacate the hearing date is dismissed.  I order the applicant to pay the costs of the application made today before me.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            22 December 2004

Counsel for the Applicant:	Mr Gorczyca
Solicitor for the Applicant:	Bruce Stewart Dimarco Lawyers
Counsel for the Respondent:	Ms Nash
Solicitor for the Respondent:	Sally Nash & Co
Date of Hearing:	22 December 2004
Date of Judgment:	22 December 2004