Woolwich Pier Hotel Pty Ltd v Comserve (No. 3077) Pty Ltd

[2003] FCA 913

FEDERAL COURT OF AUSTRALIA

Woolwich Pier Hotel Pty Ltd v Comserve (No. 3077) Pty Ltd
[2003] FCA 913

PRACTICE & PROCEDURE – notice of motion seeking summary dismissal –where no appearance by applicant – where non-compliance with directions

Federal Court Rules O 10 r 3(2), O 10 r 7(1)(a), O 35 r 7(2)(a)

WOOLWICH PIER HOTEL PTY LIMITED v COMSERVE (NO. 3077) PTY LIMITED

N1056 OF 2002

EMMETT J
13 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1056 OF 2002

BETWEEN:	WOOLWICH PIER HOTEL PTY LIMITED APPLICANT
AND:	COMSERVE (NO. 3077) PTY LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	13 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the respondent’s costs of the proceeding including the motion;

3.the respondent inform the applicant in writing as soon as practicable of the terms of these orders and of the terms of O 35 r 7(2)(a).

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	N1056 OF 2002

BETWEEN:	WOOLWICH PIER HOTEL PTY LIMITED APPLICANT
AND:	COMSERVE (NO. 3077) PTY LIMITED RESPONDENT

JUDGE:	EMMETT J
DATE:	13 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a motion for summary dismissal of this proceeding.  By its statement of claim, the applicant makes allegations concerning an agreement whereby the respondent agreed to sell to the applicant the land and improvements known as the Woolwich Pier Hotel.  The applicant claims a declaration that the respondent engaged in misleading or deceptive conduct in relation to that agreement and claims compensation or damages and damages for loss of profits.

2. The matter has been before the Court for directions on a number of occasions and I have given directions for the preparation of the proceeding for hearing.  The applicant has failed on a number of occasions to comply with directions.  On 6 December 2002, I directed the applicant to file an outline of the evidence intended to be relied upon by it by 21 February 2003.  That direction was not complied with.  On 21 March 2003, I directed the applicant to file an outline of the evidence of Mr Damien Reed by 17 April 2003.  No outline was filed.  On that day, I also ordered the applicant to file and serve a verified list of documents by 31 March 2003 and make documents available for inspection from 1 April 2003 in terms of correspondence that I identified in that direction.  While a list of documents was filed, it was not in the terms of the correspondence.

3. The matter was listed for directions on 9 May 2003.  On that day, there was no appearance for the applicant and the matter was stood over for one week.  On 16 May 2003, I gave further directions by consent that the applicant answer the respondent's request for further particulars by 30 May 2003.  There has been no response to that request.  On 16 May 2003, I also directed the applicant to file a second further list of documents by 30 May 2003 in terms of the letter from the respondent’s solicitors of 6 May 2003.  No further list of documents has been filed.

4. On 16 May 2003, I gave leave to the respondent to file a motion seeking summary dismissal of the proceedings in the event of the applicant’s failure to comply with the orders that I then made for the furnishing of particulars and filing of a further list of documents.  I gave leave for that motion to be returnable before me today.

5. The applicant’s solicitor has filed and served a notice of motion seeking summary dismissal.  However, the service was not three clear days before the hearing today and, accordingly, did not comply with the Federal Court Rules.  In any event, there has been no appearance for the applicant today.  The respondent now moves under O 10 r 3(2), as well as under O 10 r 7(1)(a), for summary dismissal of the application. 

6. Order 10 r 3(2) provides that if no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order which it thinks proper.  Order 10 r 7(1)(a) provides that where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice, if the party in default is an applicant, for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him or her in the proceeding.

7. Having regard to the history of the matter, it appears to me to be appropriate to waive compliance with the rules for service of the notice of motion to the extent that notice has been given of the motion by service effected on 10 June 2003.  In the circumstances, I consider that the order sought in the motion is appropriate.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             29 August 2003

Counsel for the Applicant:	The applicant did not appear
Solicitor for the Respondent:	Aitken McLachlan Thorpe
Date of Hearing:	13 June 2003
Date of Judgment:	13 June 2003