Williams & Hughes Pty Ltd v Hillcrest Litigation Services Ltd & Anor - [2007] FMCA 653

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS & HUGHES PTY LTD v HILLCREST LITIGATION SERVICES LTD & ANOR

[2007] FMCA 653

TRADE PRACTICES – Misleading and deceptive conduct.

PRACTICE AND PROCEDURE – Application to vacate hearing date – case management.

Federal Magistrates Act, 1999 (Cth), ss.3, 42
Federal Magistrates Court Rules, 2001 (Cth), r.1.03
Trade Practices Act 1974, s.52

Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Applicant:

WILLIAMS & HUGHES PTY LTD

First Respondent:

HILLCREST LITIGATION SERVICES LTD

Second Respondent:

CHRISTOPHER CARL GURTLER

File Number:

PEG 316 of 2006

Judgment of:

Lucev FM

Hearing date:

20 April 2007

Date of Last Submission:

20 April 2007

Delivered at:

Perth

Delivered on:

20 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr P. O'Neal

Solicitors for the Applicant:

Williams & Hughes

Counsel for the first Respondent:

Mr L. Christensen

Solicitors for the first Respondent:

Christensen Vaughan

Counsel for the second Respondent:

Mr. T. Retallack

Solicitors for the second Respondent:

Maxim Litigation Consultants

ORDERS

The First Respondent’s application to vacate the hearing be dismissed.
The First Respondent pay the Applicant’s costs fixed in the amount of $2,375.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 316 of 2006

WILLIAMS & HUGHES PTY LTD

Applicant

And

HILLCREST LITIGATION SERVICES LTD

First Respondent

CHRISTOPHER CARL GURTLER

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Interim Application

The matter before the Court is an Interim Application by the First Respondent to vacate the hearing of this matter, which is listed for next Monday 23 April 2007.
An affidavit has been filed in support of the Interim Application, that being the affidavit of Mr Van Noort. That affidavit appends an exchange of correspondence between the respective solicitors for the parties and reflects in part the submissions made today on behalf of the First Respondent in support of the Interim Application.
There is an outline of submissions, which again was filed today on behalf of the First Respondent. That outline of submissions in support of the Interim Application indicates the nature of the orders previously made by the Court, indicates the two causes of action said to be raised against the First Respondent, namely, breach of contract and a s.52 Trade Practices Act, 1974 (Cth) misleading and deceptive conduct claim, refers to affidavits sworn in support of the Application, being the affidavits of Mr McLernon sworn 8 December 2006 and 16 February 2007, and asserts that they do not raise or intimate any further claim or cause of action against the First Respondent.
The outline of submissions goes on to refer to the letters between the First Respondent (not its solicitors), and the solicitors for the First Respondent that are attached to the affidavit of Mr Van Noort sworn on 18 April 2007. The outline of submissions then asserts that the further affidavits of Mr McLernon and Mr Robinson, both dated 11 April 2007 and filed on 12 April 2007, raise at least one new cause of action against the First Respondent, namely, a breach of contract in relation to the Gurtler Agreement (as defined in paragraph 7 of the application by way of a draft statement of claim filed earlier in the proceedings). It asserts that this new cause of action is inconsistent with the allegations in the statement of claim.
The outline of submissions goes on to assert that the First Respondent is unable to file a written outline of submissions until the Applicant properly outlines the cause of action against the First Respondent, and then indicates at paragraph 8 of the outline of submissions that the First Respondent wishes to bring a cross-claim against the Applicant based on the Applicant's repudiation of the Gurtler Agreement and to plead that cross-claim as a set-off against the Applicant's claim under the application.
The outline of submissions goes on to say at paragraph 9 that the Applicant's use of the McLernon affidavit sworn 16 February 2007 and the Robinson affidavit sworn 11 April 2007 constitute a breach of privilege owed to the First Respondent and, in the final paragraph of the outline of submissions, say that the Applicant's application is an abuse of the process of the Court.
In relation to paragraph 6 of the outline of submissions, the Court is not presently persuaded that the material which has been filed by way of the affidavits of McLernon and Robinson of 11 April 2007 does raise a new cause of action, alternatively, that to the extent that it might raise further factual and legal issues, that those are factual and legal issues capable of being coped with at the hearing of what is a relatively small and simple claim in this Court. In that context the Court notes that if indeed it is the case that any of the affidavit material goes further than what might be said to be the claim in this matter, that the Court can and will entertain applications to strike out any objectionable parts of the affidavit during the course of the hearing.
However, in the context of this matter, and bearing in mind that those affidavits have now been in for a week or so, there is simply no responsive material from the First Respondent by way of affidavit or draft affidavit attached to any submissions in this matter which might indicate the view of the First Respondent as to the further matters filed. It might have been expected that such material be filed in the context of this very late Interim Application to vacate a hearing date.
In relation to paragraph 7 of the outline of submissions, the Court is simply not persuaded that the First Respondent is unable to file its written outline of submissions at this point in time. Even if the assertion put by the First Respondent is correct in relation to the further material that it says arises from the affidavits of McLernon and Robinson of 11 April 2007, there is nothing to prevent, or has been nothing to prevent, on the evidence before the Court, the First Respondent filing submissions or provisional or draft submissions in relation to the other matters that are before the Court or attaching those to any affidavit, for example, the affidavit of Mr Van Noort filed today.
On the face of it, it appears that the First Respondent has not done anything in relation to the filing of a written outline of submissions, even in relation to that part of the case which it knew was made against it prior to 11 April 2007, and yet seeks the Court's indulgence in circumstances where it has simply provided no explanation whatsoever to the Court as to why it has been unable to file an outline of submissions.
In relation to paragraph 8 of the outline of submissions and the bringing of a cross‑claim, the Court notes that a Response was filed in this matter on 27 February 2007. That Response made no claim for a cross-claim. The Court further notes that in respect of this matter the First Respondent did not appear at the first two directions hearings prior to the Response being filed and did not appear on 2 April 2007, although Mr Van Noort was allowed to address the Court very briefly. The First Respondent waits until today or very shortly before today to indicate that it intends to file a cross-claim in respect of a matter which has been listed for hearing for almost three months and in respect of which the hearing is absolutely imminent.
Again, there is no explanation, no evidence put before the Court whatsoever for any reasons for any delay on the cross-claim. Furthermore, there are no real particulars given in relation to any cross-claim. One might expect even at this late stage that the affidavit which was filed by Mr Van Noort or even the submissions which were filed by the First Respondent might descend to at least some particularisation of what might be alleged in a cross-claim. The Court is left without any real information or evidence on which to proceed to determine whether or not any such cross-claim might be reasonable, and in the absence of any evidence of that type, the Court does not consider that a claim made that a cross-claim will now be brought ought be entertained so as to justify vacating an imminent hearing.
It is the case that the First Respondent made an election. It decided to defend without a cross-claim. The Court notes that the First Respondent is in the litigation business, albeit the litigation funding business, and it is the case, in the Court’s view, that at this point in time in relation to that issue that the First Respondent has made its bed and ought lie in it.
In relation to paragraph 9 of the outline of submissions, the breach of privilege claimed in respect of the affidavits of McLernon and Robinson, if there is a breach of privilege owed to the First Respondent, that is a matter which can be taken up at the hearing. Nothing was made of it today in the submissions made on behalf of the Respondent.
Finally, in relation to paragraph 10 of the outline of submissions, alleging abuse of process of the Court, the Court does not consider that the Applicant's substantive application is an abuse of the process of the Court. Indeed, far from it. The application has been properly made, thus far it has been properly pursued and in due course, following a hearing, will be determined. To the extent that any of the material which has now been filed is objectionable, the Court again indicates that the Court will entertain an application to strike it out on Monday.
Therefore, on the basis which has been put in paragraphs 6 to 10 of the outline of submissions, it does not appear to the Court that there is any basis for the Interim Application and no evidence in support of that Interim Application properly before the Court, other than the affidavit of Van Noort which does not deal with a number of relevant issues.
With respect to the Gurtler Agreement matter that was raised in the course of submissions and the joining of Mr Gurtler as a third party, it appears to the Court that if necessary the First Respondent can take separate proceedings against Mr Gurtler. There is no reason on the evidence presently before this Court to stall the present application at this stage.
The evidence before this Court is simply that of a discontinuance of the application by the Second Respondent. That is the only fact before the Court and that does not persuade it that there is anything associated with the circumstances associated with Gurtler's involvement in the proceedings, or more particularly his discontinuance of his involvement in the proceedings, which ought prevent the hearing from proceeding on Monday.
In any event, it might be said that a reasonable First Respondent or a reasonable person in the position of the First Respondent might have anticipated Gurtler's discontinuance and dealt with that, and with Gurtler’s position generally, at an earlier stage.
There are, of course, other reasons associated with the nature of this Court, case management principles generally and the question of whether or not a matter ought be adjourned late, this late in particular, in the proceedings which mean that this Interim Application must be rejected. In that regard, the objects of the Federal Magistrates Act, 1999 (Cth) in s.3, the mode of its operation in s.42, and the objects of the Federal Magistrates Court Rules, 2001 (Cth) in r.1.03 mean that the Court is intended to operate in a manner which is:
a)as informal as possible in the exercise of its Chapter III judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures, and
e)avoids undue delay, expense and technicality.
It is in that context that the discretionary power to vacate the hearing or adjourn Monday's hearing has to be exercised. Case management principles are also relevant and the Court has regard to the High Court decisions in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 and Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625.
It is the case that this Court as part of its role is required to quell controversies. The quelling of this controversy is not one which can be avoided because one litigant:
a)is not ready;
b)is not ready to explain why it is not ready to the Court; and
c)puts no evidence about that issue before the Court by way of an explanation for its delay, either by way of affidavit beforehand (in circumstances where Mr Van Noort has filed an affidavit dealing with other issues beforehand) or by way of oral evidence today in Court in circumstances where the First Respondent was represented and was, if not invited, then certainly given the opportunity to put a representative of the First Respondent who was in Court into the witness box to give evidence.
In those circumstances whilst this Court does operate informally and without undue technicality it does not mean that it ought vacate hearings at short notice because of the failures of one party to the litigation, and the Court notes that it is the failures of the party to the litigation and seemingly not the solicitors who have been so recently briefed on their part.
The Court can also infer from the fact that there is no explanation or no reasonable explanation and a lack of preparedness to put evidence before the Court in respect of the Interim Application, that there is no explanation or no reasonable explanation to come from the First Respondent which might justify the delay on its part.
In those circumstances, and bearing in mind some of the procedural factors associated with the claim, the imminence of the hearing, the time which it has already been listed, and the lateness of the claims with respect to the cross-claims, it is the Court's view that the Interim Application ought to be dismissed, and the Court will make an order that the First Respondent's Interim Application to vacate the hearing be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Jacky Semler

Date: 4 May 2007