Williams River Stables Pty Ltd v Spink, John and Ors Spink, John and Anor v Soennichsen, Richard and Anor

[1997] FCA 1438

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NO. VG 49   of   1997

BETWEEN:

WILLIAMS RIVER STABLES PTY LTD (ACN 003 465 736)
APPLICANT

AND:

JOHN SPINK
FIRST RESPONDENT

KAREN SEMMENS
SECOND RESPONDENT

WARRACREST CONSTRUCTIONS PTY LTD (ACN 007 377 175)
THIRD RESPONDENT

WINNERS CIRCLE STABLES PTY LTD (ACN 053 152 186)
FOURTH RESPONDENT

ANTIMONY PARK (HOLDINGS) PTY LTD (ACN 006 557 222)
FIFTH RESPONDENT

DOUGLAS MAY
SIXTH RESPONDENT

AND:

JOHN SPINK
FIRST CROSS-APPLICANT

WINNERS CIRCLE STABLES PTY LTD (ACN 053 152 186)
SECOND CROSS-APPLICANT

AND:

RICHARD SOENNICHSEN
FIRST CROSS-RESPONDENT

WILLIAMS RIVER STABLES PTY LTD (ACN 003 465 736)
SECOND CROSS-RESPONDENT

JUDGE(S):	HEEREY J
DATE:	12 DECEMBER 1997
PLACE:	HOBART

THE COURT ORDERS THAT:

1. The Applicant’s Notice of Motion dated 27 November 1997 be dismissed.

2. No order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 49 of 1997

BETWEEN:

WILLIAMS RIVER STABLES PTY LTD (ACN 003 465 736)
APPLICANT

AND:

JOHN SPINK
FIRST RESPONDENT

KAREN SEMMENS
SECOND RESPONDENT

WARRACREST CONSTRUCTIONS PTY LTD (ACN 007 377 175)
THIRD RESPONDENT

WSINNERS CIRCLE STABLES PTY LTD (ACN 053 152 186)
FOURTH RESPONDENT

ANTIMONY PARK (HOLDINGS) PTY LTD (ACN 006 557 222)
FIFTH RESPONDENT

DOUGLAS MAY
SIXTH RESPONDENT

AND:

JOHN SPINK
FIRST CROSS-APPLICANT

WINNERS CIRCLE STABLES PTY LTD (ACN 053 152 186)
SECOND CROSS-APPLICANT

AND:

RICHARD SOENNICHSEN
FIRST CROSS-RESPONDENT

WILLIAMS RIVER STABLES PTY LTD (ACN 003 465 736)
SECOND CROSS-RESPONDENT

JUDGE(S):	HEEREY J
DATE:	12 DECEMBER 1997
PLACE:	HOBART

REASONS FOR JUDGMENT

I have read:

(1)Applicants’ Notice of Motion 27 November 1997.

(2)Affidavit of Andrew Priestley sworn 26 November  1997 with exhibits.

(3)Affidavit of Stacy Sommerschuh sworn 26 November 1997 with exhibits.

(4)Applicants’ submissions dated 2 December 1997 with attachments.

(5)Affidavit of Michael Gaylard sworn 9 December 1997 with exhibits.

(6)First to Fourth Respondents’ submissions dated 2 December 1997.

I am not satisfied that the sending by the respondents’ solicitors to Mr Gallagher of Schedule A (which it is conceded should not have occurred) constituted a breach of the rules of natural justice.

Mr Gallagher’s role is that of an expert witness, albeit one appointed by the Court.  He is not empowered to make decisions affecting the parties.  In the context of the present case, and the stage it has reached, Schedule A would be taken by any person with experience of building litigation as a series of allegations made by one of the parties against the other.  It could not reasonably be taken as a series of facts judicially determined or admitted.  Expert witnesses are very often, in fact almost invariably, informed in one way or another of the allegations that one party is making against the other.  A reasonable person would not apprehend that Mr Gallagher, upon reading Schedule A, would infer that the allegations were true and embark upon his task with a bias against the applicant.  In any case, Mr Gallagher is an expert with substantial experience in building litigation and arbitration.  This situation is different from that of a jury which receives some inadmissible evidence and which may have to be discharged.

As to communication between the respondents’ solicitors and Mr Gallagher prior to his appointment, I am not satisfied that these went beyond what would be the normal functions of a party’s solicitors making enquiry as to the availability of a potential expert for appointment by the Court.

The application for termination of Mr Gallagher’s appointment will be dismissed.  Since it is conceded that Schedule A should not have been forwarded to him, I will make no order as to costs.

I direct that all the parties take all steps necessary to enable Mr Gallagher to complete his task before Christmas.

I take this opportunity to mention that because my commitments would result in a long delay of the trial in this case - probably until 1999 - I have made enquiries as to the possibility of another judge hearing the trial.  At the moment, there is a possibility that this could occur in the first half of next year.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            12 December 1997

Counsel for the Applicant:	Ms J E Richards
Solicitor for the Applicant:	Andrew Priestley & Associates
Counsel for the Respondent:	Mr J M Forrest
Solicitor for the Respondent:	Rogers & Gaylard
Date of Hearing:	12 December 1997
Date of Judgment:	12 December 1997