Janus, W.C.C.M. & Ors v A.G.C. (Advances) Ltd & Anor [1988] FCA 217

No affidavit on behalf of the applicants be received after 31 May 1988. :

Affidavits on behalf of the respondents be . filed and served on or before 28 June 1988.

Affidavits on behalf of the fifth cross-respondent be filed and served on or before 19 July 1988.

The matter be mentioned further at 9.30 a.m. on Monday, 25 July 1988.

The costs of and incidental to the notices of motion filed on 28 March 1988 and 19 April 1988 be taxed and paid by the applicants to the respective respondents, such taxation not to take place until a general order for costs is made in the principal proceedings, or until further order.

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

QUEENSLAND DISTRICT REGISTRY ) QLD G96 of 1987 GENERAL DIVISION ) BETWEEN: WALTER CORNEILLE CLEMENT MARIE JANUS First Applicant AND: WINJAN PASTORAL COMPANY PTY LTD Second Applicant AND: TWEED CANAL ESTATES PTY LTD Third Applicant AND: WINGARA ENTERPRISES PTY LTD Fourth Applicant AND: A.G.C. (ADVANCES) LIMITED First Respondent AND: MACDONALD WAGNER PTY LTD Second Respondent AND: A.G.C. (ADVANCES) LIMITED Cross-Claimant AND: WALTER CORNEILLE CLEMENT MARIE JANUS First Cross-Respondent AND: WINJAN PASTORAL COMPANY PTY LTD Second Cross-Respondent AND: TWEED CANAL ESTATES PTY LTD Third Cross~Respondent AND: WINGARA ENTERPRISES PTY LTD Fourth Cross- - Respondent AND: ANGELA JANUS Fifth Cross-Respondent PINCUS J. 10 MAY 1988

proceedings under 0.10 r.7, which gives the Court power to do so

in default of compliance with the Court's directions as to steps

The principal application seeks relief against the . financier of a project involving the sub-division of some real property, and also against the consulting engineer. Most of the allegations in the pleadings delivered by the applicants assert that the respondents misled the applicants as to the costs of completing the development and matters of that sort, and performed

The foundation of the present applications is an order for directions made on 23 December 1987. It was then ordered that the case be tried on affidavit, that the applicants' affidavits he filed and served by 11 March and the respondents' be filed and served by 8 April. Since it appeared that discovery had not been completed, it was ordered that the parties "insofar as they have

not done so give discovery on or before 29 January 1988".

In what follows, I. shall give the parties the designations they have in the principal proceedings; that is, the

applicants to strike out will be called the respondents.

As I have mentioned, discovery was to take place on 29 January 1988. On that date, the applicants' solicitors said that their list was not complete and promised to provide it soon. It was delivered on 12 February. However, for various reasons inspection of the documents was somewhat delayed. On 23 March the

solicitors for the first respondent wrote to the applicants'

solicitors drawing attention to the fact that the applicants' affidavits were due on 11 March. On 24 March the - applicants' solicitors replied saying that inspection had been delayed by certain proceedings taken in Sydney and that it was necessary to

"Our experts are unable to comprehend the quantity of the documents, approximately 2,000, and it would appear that the one month originally anticipated between the inspection of documents and preparation of the affidavits was an under-estimation."

The letter went on to ask for more time to prepare the affidavits.

The material filed in connection with the second respondent''s application disclosed that on 7 March the applicants' solicitors wrote to the solicitors for the second respondent asking for an extension of time to 18 March in which to file affidavits. On 24 March that was amended by a letter asking for

one month from 25 March in which to file and serve affidavits.

Mr P. J. Marrinan, a solicitor and a member of the firm of the solicitors for the applicants, has made an affidavit saying in effect that some time was lost in arranging inspection of documents due to unavailability of the first respondent's solicitor, and I accept that. Mr Marrinan went on to say, in effect, that there was delay in photocopying the applicants' documents, which was done by the first applicant, Mr Janus, and was a "mammoth task". Paragraph 6 of Mr Marrinan's affidavit said that: "After discussion with the Applicants' Experts, they have

informed me and I verily believe that it will be another ten (10)

weeks within which to prepare and submit their respective reports". Mr Janus made an affidavit giving an elaborate account of his recent activities. The most relevant part of it is that he says, in effect, that the photocopying has been done by him personally and has taken weeks, having been impeded by the

necessity of repairing his photocopying machine from time to time.

That excuse seems to me odd. The proceedings are certain to be complex, lengthy and expensive. It is improbable that Mr Janus could ever have seriously contemplated that the case

It emerges that so far from working (as he would have needed to do) towards compliance with the order for affidavits since the end of last year, nothing of any substance was done on or before 22 April (when these motions were heard) with a view to getting the affidavits in. Further, it turns out that the letter

which I have quoted, above setting out the experts' alleged

attitude, is misleading. Only the most preliminary of approaches

The applicants' position, taken up some four months after the order for affidavits was made and about one month after the date for their delivery is that they have, in substance, done

I have given serious consideration to striking the proceedings out. It is a strong thing to deprive applicants of

the opportunity of taking their case to Court for non-compliance

with orders for directions, but unless that is done in appropriate cases parties have no incentive to adhere to the schedule set. Here, although the delay (about a month) past the date set for delivery of the affidavits is not very long, the case is a bad one in that the order was not taken seriously; no attempt was made to

I have decided to let the proceedings continue, but will allow a much shorter time than the applicants say is necessary to prepare the affidavits. I am conscious of the fact that the allowance of such a short time may produce the result that it is impossible to obtain the elaborate expert evidence which was contemplated. In my view, if that occurs it is a reasonable consequence of the dilatoriness of the applicants. Particularly is that so when it must have been obvious from the very start of these proceedings, in June 1987, that consideration would have to be given to obtaining the assistance of experts, as to the claims against the second respondent, a consulting engineer. The orders

1. That affidavits on behalf of the applicants be filed and

2. That no affidavit on behalf of the applicants be received

3. That affidavits on behalf of the respondents be filed and

That affidavits on behalf of the fifth cross-respondent. be filed and served on or before 19 July 1988.

That the matter be mentioned further at 9.30 a.m. on Monday, 25 July 1988.

That the costs of and incidental to the notices of motion filed on 28 March 1988 and 19 April 1988 be taxed and paid by the applicants to the respective respondents, such taxation not to take place until a general order for costs is made in