Williams, P. v De Biasi, D

[1992] FCA 815

JUDGMENT No. ...Q

IN THE FEDERAL COURT OF AUSTRALIA	1	NO. QG 55 of 1992
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: PAUL WILLIAMS

Applicant

AND :  DARIO DE BIAS1

First Respondent

AND:  KIMBERLEY COLOURSTONE INDUSTRY PTY. LTD.
A.C.N. 008 752 814

Second Respondent

AND :  MAURICE BYRNE

Third Respondent

AND:  COLIN RICHARDS

Fourth Respondent

AND:  MARK T. McCLUSKEY

Fifth Respondent

AND :  NIRVANA PTY. LTD.
A.C.N. 050 416 576

Sixth Respondent

AND:  J.J. McDONALD & SONS MINING PTY. LTD.
A.C.N. 051 399 261

Seventh Respondent

seventh respondent are costs in the proceedings.

The first and second respondents pay the costs of today insofar as those costs relate to paragraphs 5 and 6 of the applicant's notice of motion filed 20 October, 1992.

The applicant has leave to tax the costs ordered to be paid by the first and second respondents.

The costs of today which are not covered by orders 1 and 2 herein are costs in the proceedings.

MINUTES OF ORDERS

JUDGE M!XING ORDER:	Drummond J
DATE OF ORDER:	27 October, 1992
WHERE MADE:	Brisbane  FEDERAL COURT OF

AUSTRALIA

PRINCIPAL / REGISTRY /

THE COURT ORDERS THAT:

1.        The costs of today as between the applicant and the

THE COURT DIRECTS THAT:

1.        The seventh respondent file and serve its list of documents by Friday, 30 October, 1992.

2.        The applicant and the seventh respondent complete mutual inspection by Wednesday, 4 November, 1992.

3.        Paragraphs 1, 2, 3 and 4 of the applicant's notice of motion filed 20 October, 1992 are adjourned for further hearing to Wednesday, 28 October, 1992 at 10.00 a.m.

Paragraphs 5 and 6 of the applicant's notice of motion are adjourned for further hearing to Friday, 27 November, 1992 at 10.15 a.m..

The applicant has liberty, on notice to the first and second respondents, to bring paragraphs 5 and 6 of his motion back before the court, on a date prior to Friday, 27 November, 1992, in the event that the discovery provided by the first and second respondents is manifestly inadequate and/or if there is any other evidence available to the applicant to suggest that the first and second respondents are

seeking deliberately to delay the action being	indeed motivated by tactical considerations and are
prepared for hearing.	'

If the fourth and sixth respondents file an application in relation to the adequacy of the applicant's particulars of his statement of claim, that application shall be listed for hearing on Friday, 27 November, 1992 at 10.15 a.m..

If the fourth and sixth respondents do file the application referred to in direction 6:

(a)	the fourth and sixth respondents, by no later than Friday, 20 November, 1992, shall deliver to the applicant's solicitors a statement of their reasons for complaining as to the adequacy of the particulars.
(b)	the applicant, by Wednesday, 25 November, 1992, shall deliver to the fourth and sixth respondents' solicitors a statement of his reasons for why the particulars should stand.

The time by which the first and second respondents are to file their list of documents is further extended from Tuesday, 13 October, 1992 to 4.00 p-m. on Friday, 30 October, 1992.

The first and second respondents deliver to the solicitors for the applicant and the solicitors for the fourth and sixth respondents their draft list of documents by Wednesday, 28 October, 1992.

Inspection as between the applicant and the first, second, fourth and sixth respondents is to be completed by Friday, 30 October, 1992.

Subject to all actions being ready for trial by Friday, 27 November, 1992, the trial of this action is to be heard by the same Judge who hears the trials of actions QG 112 of 1991 and QG 126 of 1991 with this action being heard first and being followed immediately after by actions QG 126 of 1991 and QG 112 of 1991 in that order.

At the trial of this action the issues as between the applicant and the first and second respondents will be heard first.

If any respondents other than the first and second respondents wish to participate in the hearing of the issues as between the applicant and the first and second respondents, they shall apply on Friday,

27 November, 1992 for leave to so participate.

If the applicant and the first and second respondents wish to rely on any supplementary witness statements at the trial of the issues as between them only, those supplementary statements are to be exchanged by Thursday, 26 November, 1992.

In relation to the issues as between the applicant and the fourth and sixth respondents, those parties, by Thursday, 26 November, 1992, are to:

(a) exchange a list identifying all the material already filed or delivered in either this action or in action QG 126 of 1991 upon which they intend to rely at the trial of this action;

(b) exclla~lge supplementary witness statements of all additional evidence upon which they intend to rely at the trial of this action.

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

IN THE FEDERATJ COURT OF AUSTRALIA	)	NO. QG 55 of 1992
OUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN:  PAUL WILLIAMS

Applicant

AND :  DARIO DE BIAS1

First Respondent

AND :  KIMBERLEY COLOURSTONE INDUSTRY PTY. LTD.
A.C.N. 008 752 814

Second Respondent

AND :  MAUBICE BYRNE

Third Respondent

AND :  COLIN RICHILRDS

Fourth Respondent

AND:  MARK T. McCLUSKEY

Fifth Respondent

AND:  NIINANA PTY. LTD.
A.O.N. 050 416 576

Sixth Respondent

AND :  J.4. McDONALD & SONS MINING PTY. LTD.
A.(.N. 051 399 261

Seventh Respondent

Coram:	Drummond J
Date :
-	27 October, 1992

Place: Brisbane

EX TEPORE REASONS FOR JUDGMENT

This is an application by the applicant for an order

I that the defence a~d cross-claim of the first and second
respondents be dismissed.

The basis for the application is, firstly, non-compliance by those respondents with a direction given on 21 August, 1992 that they file and serve their list of documents by 25 September and, secondly, non-compliance with a direction given on 6 October, 1992 extending the time for filing the list of documents from 25 September to 13 October.

The evidence indicates that a bundle of documents, as distinct from the list which those respondents were directed to file, was delivered to the offices of the town agents for the first and second respondents' solicitors this morning. The first respondent lives in Broome in Western Australia. The first respondent is also a director of the second respondent. As I say, no list has yet been prepared, let alone filed and served. The applicant is thus not in a position to know whether or not there has been compliance by the first and second respondents with their obligations as to discovery.

The second basis upon which the application to granted the applicant an interlocutory injunction restraining	strike out is pressed is that when on 21 August, 1992 I
the first and second respondents from taking any action to terminate the licence agreement, I did so in circumstances where I did not require security to be given by the applicant for his undertaking as to damages, but indicated for the reasons spelled out in my judgment that if the matter had not come to trial by 28 February, 1993 then the first and second
respondents would, in effect, be at liberty to apply for an order that security be required from the applicant to support his undertaking as to damages.
The conduct of the first and second respondents raises a suspicion that their dilatoriness in complying on two separate occasions with their obligations as to discovery may be motivated by an attempt to achieve the tactical advantage of pushing the applicant beyond the cut-off date of 28 February, 1993. At the moment, however, there is nothing more than a suspicion that that may be the case. I am therefore not prepared to strike out the first and second respondent; defence and cross-claim today.
However, because those respondents have chosen to produce their documents only at the eleventh hour thereby depriving the applicant of the opportunity of raising in court today any question of inadequate discovery and, in the event that there is a manifest inadequacy in the discovery that the
adjourn that part of the applicant's motion which seeks to first and second respondents propose to give, I think I should
strike out the first and second respondents' defence and cross-claim and give leave to the applicant on notice to the first and second respondents to bring the motion back before the court if there is manifest inadequacy in the discovery provided and/or if there is any other evidence available to the applicant to suggest that the first and second respondents are indeed motivated by tactical considerations and are seeking deliberately to delay the action being prepared for hearing.
I think the circumstances are such (and th'is is not really resisted by the solicitor for the first and second respondents) that the costs of today which relate to that portion of the applicant's notice of motion which seeks to strike out the first and second respondents' defence and cross-claim should be paid by the first and second respondents. For the reasons I have already given revolving around the fact that there is a sanction against the applicant if the matter does not come to trial by the end of February 1993, I think this is one of those cases in which I should give leave to the applicant to tax those costs.
I certify that this and the
preceding three pages is a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.
Associate: (y-'*- Date: 27 October, 1992