Wharton v Commonwealth Bank of Australia

[2014] FCA 585

FEDERAL COURT OF AUSTRALIA

Wharton v Commonwealth Bank of Australia [2014] FCA 585

Citation:	Wharton v Commonwealth Bank of Australia [2014] FCA 585
Parties:	JOHN MACARTHUR WHARTON and ELIZABETH MARY WHARTON v COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)
File number(s):	NSD 1618 of 2012
Judge(s):	GREENWOOD J
Date of judgment:	4 June 2014
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for an adjournment of the trial made on the first day of the trial
Legislation:	Federal Court of Australia Act 1976 (Cth), s 37M
Cases cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 - cited Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 - cited
Date of hearing:	2, 3 and 4 June 2014
Date of last submissions:	3 June 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Applicants:	Ms S Pointing
Solicitor for the Applicants:	Levitt Robinson Solicitors
Counsel for the Respondent:	Mr B O’Donnell and Mr D de Jersey
Solicitor for the Respondent:	Gadens Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1618 of 2012

BETWEEN:

JOHN MACARTHUR WHARTON
First Applicant

ELIZABETH MARY WHARTON
Second Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)
Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	4 JUNE 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application by the applicants for an adjournment of the trial is dismissed.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1618 of 2012

BETWEEN:

JOHN MACARTHUR WHARTON
First Applicant

ELIZABETH MARY WHARTON
Second Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124)
Respondent

JUDGE:	GREENWOOD J
DATE:	4 JUNE 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This proceeding was set down for trial for seven days commencing on Monday, 2 June 2014 at a directions hearing held on 29 October 2013 (see Order 11). 

2. The proceeding has been the subject of many directions hearings and orders as to amendments to pleadings, the filing and service of witness statements including the statements of experts, discovery and other matters. 

3. I will return to some aspects of these directions orders later in these reasons. 

   The preliminary applications on the first day of the trial

4. On the first day of the trial the applicants sought leave to amend their third amended statement of claim to introduce a contention that a representative of the respondent bank, Mr Kayes, failed to disclose to Mr Wharton in conversations on 27 August 2008 and 29 August 2008 that specific conditions were attached to the approval of significant financial facilities provided by the Bank to the applicants for the acquisition by them of two pastoral properties called “Red Rock” (“RR”) and “The Canyon” (“TC”). 

5. The pleading as it stands, pleads that Mr Kayes failed to disclose in those conversations a particular condition attaching to the approval of the facilities, namely, a special condition that there would be a loan facility review by the Bank if the stock numbers on RR and TC failed to measure, at a contemplated muster, not less than 6,600 head plus or minus 5%. 

6. The applicants, Mr and Mrs Wharton, formerly carried on the operation and management of four pastoral properties in Northern Queensland, namely Runnymede, Yarrabong, Red Rock and The Canyon (after the acquisition of those last two properties). 

7. The respondent (“CBA”) became the successor in law to the Bank of Western Australia Limited (“BankWest”) which was the bank that provided the relevant facilities to the applicants. 

8. Apart from the proposed amendment just described, the applicants also sought to further amend the statement of claim to plead that in reliance upon the pleaded non‑disclosure (and the foreshadowed additional non‑disclosures of specific conditions), the applicants entered into six non‑pleaded further facility verification agreements.  These agreements went to the applicants’ reliance loss claims.  The essential case on the pleadings is that had Mr Kayes not failed to disclose the special stock muster condition attaching to the loan approval, the applicants would not have allowed the $7 million purchase contract for the acquisition of RR and TC to become “unconditional”.  The contract was subject to a satisfactory finance approval. 

9. The case is a reliance loss claim based on a “no transaction” case. 

10. Because the proposed amendments (the additional non‑disclosure point and the six agreements) had been raised only on the first day of the trial notwithstanding many opportunities had existed to amend, and seek to amend, the statement of claim over time; no proper forensic opportunity existed to test the contentions; and the non‑disclosure point went to central conversations in issue, leave was refused to now make the proposed amendments. 

11. In addition, the applicants sought to rely on a significant additional statement from Mrs Wharton.  Objection was taken by the Bank to leave being given to the applicants to file and rely upon any additional statements having regard to the many directions orders concerning the filing and service of lay witness statements including those of the applicants themselves.  Mrs Wharton’s statement addressed a range of topics including aspects of exchanges with Mr Kayes and, importantly, exchanges with Mr Esdale.  It also set out her role in relation to account management for the partnership pastoral undertaking of the applicants and her role in the preparation and management of financial information of the partnership generally. 

12. In the result, however, leave was given to the applicants to rely upon Mrs Wharton’s additional statement.

13. Counsel for the applicants also made submissions that the applicants had not expected to have to formally prove particular financial accounts prepared by the applicants’ accountants, Synergy Accountants, prepared by Mr Chris Hall for the financial year ending 30 June 2012 and accounts to December 2013 (see Vol 8 of the trial bundle at pp 3338 to 3357; 3358 to 3362; and 3380 to 3382). The applicants contend that they should have been told by the Bank’s legal advisers that it would be necessary for the applicants to prove the accounts (also relied upon by the applicants’ experts), by admissible evidence. The financial statements for the year ending 30 June 2012 are described as “draft” accounts. The financial accounts were, however, admitted as “business records” as the tests required by s 69 of the Evidence Act 1995 (Cth) were found to be satisfied having regard to Mrs Wharton’s further statement about her role in the management and assembly of the underlying financial information, admitted into evidence on Day 1.

14. Nevertheless, the ultimate probative value of the accounts in the form of the documents as admitted remained a matter of concern according to counsel for the applicants.  Evidence would need to be called from Mr Hall and the difficulty, it was said, is that Mr Hall is overseas and will not return to Australia until 14 July 2014.  Mr Sedgwick, a principal of Synergy Accountants, was not engaged in the preparation of the accounts and is not in a position to give evidence about them. 

15. Counsel for the applicants also foreshadowed that a significant further statement by Mr Wharton was being prepared during the course of the day and that it was expected to be available fairly shortly.  That statement was handed up on Day 2 of the trial during the course of the various applications just described. 

16. Mr Wharton’s statement is said to go to some existing matters of fact in controversy but also raises some additional matters going, particularly, to what is called the cashflow case, the breach of a good faith term and contended breaches of particular provisions of the Code of Banking Practice said to apply to the agreements in relation to relevant financial facilities in issue. 

17. Mr Wharton’s statement was put to one side for the moment as it was not relied upon by the applicants in what became the fundamental and immediate matter in question. 

18. After lunch on Day 2, counsel for the applicants sought an adjournment of the trial generally, coupled with an application for leave to further amend the third amended statement of claim, to re‑introduce and thus agitate significant causes of action that had been abandoned by the applicants when the statement of claim was amended, effective 21 December 2012, pursuant to amendments made in accordance with an order of Bennett J of 17 December 2012. 

19. Counsel for the applicants sought an adjournment of the trial having regard to these factors.  First, the real case and central case is the breach of the Code of Banking Practice claim.  The Bank, by its officers, it is said, knew or ought to have known as prudential bankers, that the applicants “couldn’t afford the loan in the first place” nor could they “meet the repayment conditions” and they “couldn’t pay back the principal” (T, p 96, lns 39‑46).  Second, the applicants need to obtain expert evidence on aspects of this prudential banker claim.  Third, on the case currently pleaded “the evidence is not sufficient for the matter to go to trial” (T, p 97, lns 35‑37).  Fourth, Mr Hall is overseas and evidence is required from him. 

20. It is now necessary to examine some aspects of the history of the pleadings. 

21. The proceeding was commenced on 19 October 2012. 

22. The statement of claim filed that day framed the relevant matters in the following way, put simply.  In 2007, the Bank granted loan or financial facilities to the applicants of $4.3 million and $300,000.00 on its “General Terms” of lending secured by mortgages over Runnymede and Yarrabong and a stock mortgage so as to re‑finance existing facilities held by the applicants called the Landmark facilities.  On 30 July 2008, the applicants entered into the purchase contract for RR and TC (including anticipated cattle numbers of 4,500 head) at $7 million subject to “satisfactory financial approval” by 20 August 2008.  In 2008, the Bank granted further financial facilities of $8.3 million, in all, incorporating the General Terms of lending, for the purpose of enabling the applicants to purchase RR and TC and associated stock, plant and equipment. 

23. The 2008 facilities were to be secured over the existing properties, a further stock mortgage and mortgages over RR and TC.  The 2008 facilities were subject to a pleaded implied term that the Bank “act in good faith and reasonably” when performing obligations or exercising rights under the facility agreements whether the 2008 facilities or revisions of those facilities later in time.  In 2010, the Bank granted revised facilities to the applicants based on a letter of offer dated 17 December 2009 providing for a reduction of indebtedness on particular dates.  Similar agreements were entered into in March and September 2010. 

24. At para 24, the applicants plead that in assessing the applicants’ application for finance for the purchase contract facilities and in granting the 2008 facilities, the Bank prepared and relied upon a cashflow projection assessing the applicants’ capacity to repay the 2008 facilities, prepared by Mr Kayes or possibly Mr Esdale. 

25. At para 25, the cashflow was based on 11 monthly income assumptions for the applicants’ pastoral activities based on cattle sales of 6,877 head in all over the relevant period. 

26. At para 26, those income assumptions are said to have had no reasonable basis for four reasons (with a number of sub‑propositions) and at para 27, the applicants plead that the Bank knew or ought reasonably to have known those para 26 things when granting the 2008 facilities and the 2010 variations. 

27. At para 28, at the time of assessing the applicants’ finance application for the RR and TC purchase, the applicants did not know of the cashflow projection or the para 25 assumptions upon which it was based, and the Bank did not tell them. 

28. At para 29, the applicants plead that the Bank as at December 2010, asserted default under the 2010 facilities and, by doing so and relying on the cashflow projection, the Bank breached the good faith term.  The contended breach then led to other arrangements between the applicants and the Bank being struck, including the applicants entering into a Deed of Forbearance and ultimately the sale of Yarrabong and TC, and other arrangements in November 2011. 

29. The Bank ultimately appointed receivers and managers to the assets of the applicants under the various charges. 

30. As to the Code of Banking Practice, the applicants plead that the Code applies to the 2007, 2008, 2009 and 2010 facility agreements.  They plead that cl 2.2 of the Code provides that the Bank will act fairly and reasonably towards the applicants (as customers of the Bank) and in an ethical manner.  They plead that by cl 25.1 of the Code, before granting or varying credit facilities, the Bank must “exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods and in forming its opinions about Mr and Mrs Wharton’s ability to repay such credit facilities”.  They plead that the Bank breached cls 2.2 and 25.1 of the Code in assessing and granting the 2008 financial facilities for the RR and TC purchase.  They plead that had the Bank:  not adopted the “cashflow projection”; told them the para 25 assumptions; and assessed the RR and TC finance application by reference to a cashflow “which made reasonable assumptions”, then, Mr and Mrs Wharton would not have been offered or granted the 2008 facilities (and any later variations of them).  They would not have purchased RR and TC.  They would have continued to operate their pastoral undertaking within the terms of the 2007 facilities and the default events and enforcement steps would not then have occurred. 

31. Apart from these matters, the applicants pleaded an unconscionable conduct case and a misleading and deceptive conduct case having regard to relevant provisions of the Australian and Securities Investments Commission Act 2001 (Cth) (the “ASIC Act”), the Trade Practices Act 1974 (Cth) or alternatively provisions of the Australian Consumer Law. Ultimately, in relation to the cashflow case and the Code case, the applicants seek the relief recited in the application document particularly having regard to the ASIC Act.

32. As already mentioned, Bennett J made directions orders on 17 December 2012 which provided by Order 1 that the applicants file and serve an amended originating application and an amended statement of claim by 21 December 2012.  The applicants filed an amended statement of claim on 21 December 2012 but failed to mark up that document indicating the changes to the pleading.  An amended statement of claim was then prepared (sometimes described as the third document but in truth a marked up version of the first amended statement of claim).  The marked up amended statement of claim was ultimately filed on 7 March 2013 but it bears the date 20 December 2012 because it is a marked up version of the earlier document.  In the marked up amended statement of claim the applicants remove all of the causes of action based upon the cashflow projection case and the Code of Banking Practice case.  They also delete a claim in relation to what is called the “Queensland Farm Finance Strategy”.  They delete the paragraphs of the pleading which deal with contended breaches of the Code and all the contentions about what would and would not have happened had the Bank acted in conformity with the Code and not relied upon the cashflow projection document. 

33. A second amended statement of claim was filed on 17 March 2014 and then a third amended statement of claim was filed on 7 April 2014. 

34. On Day 2 of the trial, the applicants, by their counsel, sought an adjournment of the trial to enable them to re‑introduce the matters which were earlier abandoned (but for the Queensland Farm Finance Strategy paragraphs which are not sought to be agitated). 

35. When counsel for the applicants made the application for the adjournment of the trial coupled with the application for leave to amend the statement of claim to re‑introduce the abandoned causes of action and also introduce the matters about which leave was refused on Day 1 of the trial, the Court made it plain that the matters upon which the applicants would rely in seeking to press an adjournment of the trial would need to be the subject of affidavit evidence.  The affidavits in support of the application are these:  an affidavit of Mr Stewart Alan Levitt sworn 1 June 2014, two further affidavits of Mr Levitt sworn 3 June 2014; and, an affidavit of the first applicant, Mr John Wharton, sworn 3 June 2014. 

36. Mr Levitt’s affidavit of 1 June 2014 deposes to these matters. 

37. Mr Levitt is and has been the solicitor on the record for the applicants from the inception of the proceedings and he is the sole principal of Levitt Robinson Solicitors, Sydney.  The proceedings were commenced based on a statement of claim drawn by senior and junior counsel in Brisbane.  Due to logistical difficulties and the expense of instructing Brisbane counsel from Sydney, Mr Levitt instructed Mr Graeme Turner of counsel, an experienced senior junior counsel at the Sydney Bar.  Mr Turner was instructed by Mr Levitt and then by Mr Pitt of Mr Levitt’s firm and then by Mr Ginsburg of Mr Levitt’s firm.  Mr Turner of counsel settled all of the documents filed in the proceedings from 6 December 2012 until about 11 April 2012.  Mr Turner took a very engaged role in the preparation and not only drafted all the relevant pleadings for the applicants but he took instructions for and settled all witness statements up to 11 April 2014, reviewed witness statements of the Bank, obtained Mr Wharton’s instructions on those statements in order to prepare a response, settled amendments to the amended statement of claim, reviewed the applicants’ expert evidence and dealt with the discovery issues. 

38. Mr Levitt says that on 24 March 2014 he participated in a conference with Mr Turner and Mr Ginsburg, having reviewed all of the applicants’ evidence filed in the case.  Mr Levitt says that he became concerned “at the direction being followed in the case, with respect to the applicants’ pleading and the narrow focus of the evidence filed herein on behalf of the Applicants”.  Mr Levitt says that on 10 April 2014 he received an email from Mr Turner advising that Mr Turner would be absent from Chambers until 9 May 2014.  Mr Levitt was concerned about Mr Turner’s foreshadowed lengthy absence from Australia in the lead‑up to the scheduled trial commencing on 2 June 2014.  Mr Levitt determined that he should brief new counsel.  Mr Levitt says that on 28 April 2014 there “were ‘crisis’ discussions between John Wharton and me” and as a consequence of those discussions, Mr Levitt proceeded to brief, with the applicants’ authority, Ms Pointing of the Brisbane Bar to assume the conduct and carriage of the matter. 

39. Ms Pointing received an “extensive and voluminous brief on 7 May 2014”. 

40. Mr Levitt says that since then Ms Pointing has worked with Mr Levitt and several members of his firm to deal with “evidentiary and pleadings deficiencies” in the preparation for the trial.  Mr Levitt has instructed Ms Pointing to seek leave to further amend the third amended statement of claim in the manner identified in his letter to the respondent’s solicitors dated 30 May 2014. 

41. In Mr Levitt’s letter of 30 May 2014, he sought to put the respondent on notice that “at the trial of this matter on Monday, our clients intend to seek leave to amend the pleadings and the amended originating application in the following respects:  1.  Including a claim in generally similar terms to that as originally pleaded (with some amendment) in the Statement of Claim based upon the use by the bank of the cash flows and cattle schedules, but which has since been deleted – we refer to the Statement of Claim, in particular paragraphs 24‑69.  We note that we do not propose to plead the claim based on the Queensland Farm Finance Strategy”. 

1. In one of his affidavits sworn 3 June 2014, Mr Levitt says that on 7 December 2012 Mr Turner was instructed to review the pleadings as Mr Levitt had noticed that there was no misleading and deceptive conduct claim pleaded in reliance upon relevant provisions of the ASIC Act. Mr Levitt says that there were further exchanges with Mr Turner about aspects of the claims and matters raised in an unsealed defence and cross‑claim of the Bank. Mr Levitt says that at some time prior to 20 December 2012 he had a discussion with Mr Turner about the case and he was aware that Mr Wharton and Mr Pitt had conferred with Mr Turner. Mr Turner raised with Mr Levitt the new misleading conduct case (ASIC Act) to be introduced. Mr Levitt says that at that time he was not aware that Mr Turner intended to delete from the pleading the cashflow and Code of Banking Practice matters.  On 20 December 2012, the draft amended pleading was received at Mr Levitt’s office from Mr Turner.  Mr Levitt says that the document deleted the original Code of Banking Practice claim, removed the unconscionable conduct claim under the ASIC Act and the misleading and deceptive conduct claim under the Trade Practices Act and added a misleading and deceptive conduct claim under the ASIC Act but no unconscionable conduct claim.

2. Mr Levitt says that he has never received instructions from Mr and Mrs Wharton to delete the claims which were deleted, and Mr Levitt did not instruct Mr Turner to do so.  Mr Levitt says that on 21 December 2012, Mr Pitt sent the pleading in its amended form from Mr Turner to Mr Wharton for his approval.  Mr Pitt later that day received instructions from Mr Wharton to file the amended originating application and the amended statement of claim.  Mr Wharton gave those instructions by telephone. 

3. Mr Levitt says that he did not see the amended pleading before it was filed. 

4. Mr Levitt says that on 2 June 2014 he telephoned Ms Georgiou of his office and spoke with her about her recollection of the events surrounding her signing the amended pleading and application.  Mr Levitt says that Ms Georgiou was asked by Mr Pitt to sign the amended pleading on 21 December 2012 and that Mr Pitt had told her that he had “checked with the Whartons that they were happy with it” and that Mr Wharton had said that if that was Mr Turner’s advice then “go ahead and file it” and “Stewart told me it’s ok”. 

5. Mr Levitt says that it was only in mid‑March 2014 that he became concerned at the direction being followed in the case.  

6. Mr Wharton, in his affidavit, says that in December 2012 he was aware that the claim was to be changed but he did not understand the legal principles involved and did not understand the exact changes that were to be made.  He says that he received an amended claim from Mr Pitt on 21 December 2012.  He spoke with Mr Pitt and Mr Pitt asked for instructions to file the amended documents which Mr Pitt said Mr Turner had settled.  Mr Wharton says that he did not fully appreciate the difference between the original pleadings and the amended pleadings.  Mr Wharton’s position was that he and his wife would “go along with it if that is what Graeme [Turner] has advised”.  Mr Wharton says that he did not realise that Mr Levitt had not seen the proposed changes. 

7. Mr Levitt was cross‑examined about the matters the subject of his affidavits. 

8. The position arising out of the cross‑examination was that in March 2013, Mr Levitt became aware that the claims now sought to be introduced had been deleted.  Mr Levitt continued to be concerned about the deletion of those claims and there were discussions between Mr Levitt and Mr Turner about that matter.  Mr Levitt says that he pressed his view that the claims remained good claims and ought to be pleaded but Mr Turner had a different view.  Mr Levitt respected Mr Turner’s experience and the basis for his views but Mr Levitt had a different view.  Mr Turner, in response to Mr Levitt’s propositions, would apparently say to Mr Levitt that Mr Levitt ought to produce the evidence to support those claims. 

9. Throughout 2013, no attempt was made to amend the pleading to re‑introduce the claims now sough to be re‑introduced and no such step was taken throughout 2014 until Friday, 30 May 2014 immediately before the commencement of the trial on Monday, 2 June 2014. 

10. It should also be noted that directions orders were made on 14 March 2013 for the filing of statements containing all the evidence of each witness upon which the applicants proposed to rely with the respondent to file their witness statements by 20 June 2013.  Further directions orders were made on 15 May 2013 for the filing of all witness statements proposed to be relied upon at trial (by the applicants by 28 June 2013 and by the respondent by 9 August 2013) subject to the resolution of discovery issues.  Further directions orders were made about those matters on 10 July 2013.  On 29 October 2013, further orders were made about statements with trial dates being allocated for seven days commencing 2 June 2014.  On 11 March 2014, the applicants were given leave to file a further amended statement of claim by 14 March 2014.  Extensive directions orders were made that day and on 28 March 2014 for the filing of a third amended statement of claim on or before 7 April 2014 taking account of the matters set out in Annexure A to those orders.  Again, extensive directions orders were made on 14 April 2014.  Additional directions orders were made on 16 May 2014. 

11. Throughout all of this period, from March 2013 until Friday, 30 May 2014, no question was raised as to an amendment to the pleadings to re‑introduce the claims abandoned in December 2012.  The evidence makes plain that Mr Levitt knew and understood that the claims had been abandoned by March or at least April 2013.  Mr Levitt gave evidence that he was very regularly talking to Mr Wharton about the case and he must have had an opportunity to talk to Mr Wharton about the cashflow and Code of Banking Practice contentions.  Mr Turner, according to Mr Levitt, dealt with Mr Wharton directly together with an instructing solicitor in taking instructions from Mr Wharton about factual matters in the case.  Mr Wharton gave instructions to amend the claim initially and no step was taken as between Mr Wharton, Mr Levitt or Mr Turner to bring on an application to further amend the pleading in 2013 or at any time in 2014 to re‑introduce the abandoned claims. 

12. It was not until Ms Pointing and Mr Levitt caucused about the issues in the case in preparation of the case for trial that Ms Pointing took the view that Mr Levitt was correct and that the claims ought to be agitated and thus re‑introduced into the proceeding. 

13. That in substance has given rise to the present application for an adjournment. 

14. The difficulty is this. 

15. There simply is no reasonable explanation for having failed to raise this issue at a reasonable time prior to the commencement of the trial.  It will require a re‑pleading of the case.  The claims are substantial ones as to questions of fact and expert evidence and although not all the preparation will be lost, there will be significant further work to be done and it is correct to say that a new large part of the case is to be introduced.  It is now too late in the day to allow the trial to be adjourned to enable the pleading to be amended to introduce these claims.  Court time has been allocated to the case.  The case has been prepared in terms of all its forensic work on the footing of the issues currently framed by the existing pleadings.  An order for costs thrown away by reason of the adjournment is not, when weighed in the balance, a sufficient protection of the interests of the respondent which has come to Court ready to answer the case made against it.  The case involves allegations of improper or unprofessional banking conduct on the part of Mr Kayes.  He has an interest in answering that part of the case and having the benefit of the quelling of the existing controversy so far as it affects him. 

16. In addition, the applicants are impecunious.  Ms Pointing says that their impecuniosity is a function of the Bank’s conduct in issue in the proceedings.  Impecuniosity is a factor to be weighed in the balance but the critical thing in this case is that the lawyers and the client knew from March/April 2013 that the claims had been abandoned and they have stood by until the first day of the trial to seek to raise them again.  Secondly, there have been many opportunities to raise the question of amending the pleading to introduce the claims and none of those opportunities were taken. 

17. There have been many directions hearings directed to the structure of the case, the issues in the case and the procedural steps necessary to have it ready for trial. In this respect, I have particular regard to the integers of s 37M of the Federal Court of Australia Act 1976 (Cth) concerning the overarching purpose at s 37M(1) and the objectives at s 37M(2). Neither the overarching purpose nor the objectives are served by adjourning a seven day trial in the circumstances reflected in these reasons.

18. The interests of justice are not served by adjourning this trial 

19. The four reasons advanced by Ms Pointing as earlier described are not a sufficient foundation for the exercise of the discretion to adjourn the trial.  The settled principles I have applied in the exercise of the discretion are those principles drawn principally from the observations of their Honours in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and the Full Court of this Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261.

20. Accordingly, the application for an adjournment of the trial must be rejected. 

I certify that the preceding sixty‑one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       4 June 2014