Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd

Procedural history 2 Various procedural steps were taken in the proceedings and then on 15 December 2006 they came on for directions before a Judge of this Court. The Judge made the following orders: "1. The proceeding be set down for trial on all issues on 2 June 2007 on an estimate of three weeks. 2. The Applicant's solicitors shall by 19 February 2007 serve on the Respondents' solicitors a draft index for the proposed Court book and each of those other solicitors shall send a list of documents to be included or excluded from the proposed Court book and shall consult with the Applicant's solicitors as to the contents of the Court book by 28 February 2007. 3. That the Applicant's solicitors shall serve the Respondents' solicitors and file for the use of the Judge by 14 March 2007 a paged and indexed Court book comprising the current pleadings and particulars and one copy only of each of the proposed exhibits. 4. That the Applicant's solicitors have available at the hearing a copy of the Court book for the exclusive use of witnesses during the examination. 5. That each party file and exchange by 16 April 2007 copies of any reports by expert witnesses to be called at trial. 6. That each party file and exchange with each other party by 4 May 2007 a list of the witnesses to be called at the hearing and a copy of the statement in the form of an outline of the evidence of each witness, with references where appropriate to the Court book. 7. Save with leave of the Court, or by consent of the parties, no party shall, except in cross-examination, adduce from any witness at the trial of the proceeding any evidence to which this order applies unless that party shall have filed and served an outline of evidence of the witness in accordance with this order. 8. That the costs of this application be reserved." I will refer to these orders as "the December orders". 3 On 5 March 2007, the applicant issued a notice of motion wherein it sought the following orders: "1. There be judgment for the Applicant against the First Respondent, on that part of the Applicant's claim that the First Respondent has contravened s 51AD of Part IV of the Trade Practices Act 1974. 2. There be judgment for the Applicant against the Second Respondent, and that part of the Applicant's claim that the Second Respondent has, pursuant to s 75B of the Trade Practices Act 1974, been involved in a contravention of s 51AD of Part IVB of the Trade Practices Act 1974. 3. The assessment of the amount of damages, or other relief, be deferred until further order.

4. An order that the Respondents pay the costs of this application. 5. Such further or other order or relief as may be required." 4 The notice of motion was supported by an affidavit of Mr Nicholas Stewart who is the managing director of the applicant. 5 The applicant's notice of motion came on for mention before me on 13 March 2007. I fixed 28 March 2007 as the date for the hearing of the notice of motion and I made a number of directions relating to the material to be relied upon on the hearing of the notice of motion and the filing of outlines of submissions. On 13 March 2007, the respondents asserted that the applicant was in breach of the December orders. 6 I heard submissions on the applicant's notice of motion on 28 March 2007 and I reserved my decision. Again on that occasion the respondents asserted that the applicant had not complied with the December orders. The applicant asserted that the respondents had not made proper discovery. 7 On 4 April 2007, I made the following orders: 1. The application by the applicant by notice of motion dated 5 March 2007 be dismissed. 2. The applicant pay the respondents' costs of the application by notice of motion dated 5 March 2007. I delivered reasons: Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) [2007] FCA 489 . 8 Again on that occasion the respondents asserted that the applicant had not complied with the December orders. I indicated to the parties that if either party complained of a failure to comply with orders of the Court, then an appropriate application should be made on notice. 9 On 3 May 2007, the respondents issued a notice of motion seeking the following orders: "1. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant; or in the alternative 2. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant, if the applicant does not serve on the respondents' solicitors a draft index for the proposed Court book within two days of the date of this order and further comply with the orders of the Honourable Justice Kenny dated 15 December 2006; and 3. That the applicant pay the respondents' costs of and incidental to this application assessed on the standard basis unless agreed between the respondents on the one part and the applicant on the other part; and
5. Any other orders that the Court may deem fit in the circumstances." 10 The respondents' notice of motion was supported by an affidavit from Ms Robyn Bartlett, who is a member of the firm of solicitors acting for the respondents. Ms Bartlett deposed to the fact that the applicant had not served on the respondents a draft index for the proposed Court book. The solicitor acting for the applicant swore an affidavit on 8 May 2007 and that affidavit was filed on the following day. The solicitor for the applicant deposed to the fact that the applicant asserted that the respondents had failed to discover any documents relating to the issue of the applicant's claim under the Franchising Code of Conduct and that such discovery was necessary before the applicant could prepare the Court book and Mr Stewart's witness statement. 11 The respondents' notice of motion dated 3 May 2007 came on for hearing before me on 9 May 2007. At the outset of the hearing, the applicant made an application orally for an order for particular discovery under O 15 r 8 of the Federal Court Rules. That application was stood over so as to enable the respondents' counsel to obtain instructions. I indicated that I would sit at short notice to hear the application if I considered that appropriate. I also indicated that I was disposed to stand over or adjourn the respondents' notice of motion and wait and see if the orders I proposed to make were complied with. I indicated that I would sit at short notice to hear that notice of motion if I considered that appropriate. The orders I made on 9 May 2007 were as follows: "1. The respondent's application by notice of motion dated 3 May 2007 be adjourned to a date to be fixed. 2. The applicant's oral application for an affidavit to be filed by the respondents under order 15 rule 8 be adjourned to a date to be fixed.

3. (1) The second order of her Honour Justice Kenny made on 15 December 2006 be varied to the extent that the solicitors for the respondents shall send a list of documents to be included or excluded from the proposed court book and shall consult with the applicant's solicitors as to the contents of the court book by 18 May 2007 (2) The third order of her Honour Justice Kenny made on 15 December 2006 be varied to the extent that the applicant's solicitors shall serve the respondents' solicitors and file for the use of the judge by 23 May 2007 a paged and indexed court book comprising the current pleadings and particulars and one copy only of each of the proposed exhibits. (3) The sixth order of her Honour Justice Kenny made on 15 December 2006 be varied to the extent that the applicant is to file and serve on the respondents by 14 May 2007 and the respondents are to file and serve on the applicant by 21 May 2007 the following: (1) a list of the witnesses to be called at the hearing; and (2) a copy of a statement in the form of an outline of evidence of each witness with references where appropriate to the court book.
4. The costs of today be reserved.
5. There be liberty to apply." No variation was made to order number 5 of the December orders because counsel for the applicant told me that the applicant would not be calling any expert witnesses. 12 On or about 16 May 2007, the applicant filed and served an outline of evidence in respect of each of the following witnesses:
   1. Mr Nicholas Stewart, director of the applicant;
   2. Mr Julius Abrahams, father of Mr Stewart;
   3. Mr Paul Colyvan, motor mechanic and employee of the applicant; and
   4. Mr Dirk Balthazaar, the applicant's accountant. 13 On 16 May 2007, Ms Bartlett swore a second affidavit in support of the respondents' notice of motion dated 3 May 2007. She deposed to the fact that the applicant's purported draft court book index "simply reproduced … each of the applicant's discovered documents, in the order in which they appear in the applicant's list of documents". She deposed to the fact that she organised conferences with a number of potential witnesses for the respondents in Melbourne on 14 May 2007 - 18 May 2007 and briefed counsel to assist her. She deposed to the fact that she flew to Melbourne on 13 May 2007 and, that Mr Phillip Witheridge, a potential witness for the respondents, flew to Melbourne from Cooktown on 13 May 2007 and left Australia for China on a business trip on 15 May 2007. She deposed to the fact that the second respondent, Mr Graham Turnbull, arrived in Melbourne on the morning of 15 May 2007 and that he had flown from China "specifically for the purpose of providing his response to the outlines of evidence to be filed by the applicant". No outlines of evidence were received by the respondents from the applicant until 16 May 2007. Ms Bartlett deposed as follows: "19. As a result of the applicant's failure to comply with the orders of Justice Kenny and Justice Besanko, the respondents have suffered irremediable prejudice. Mr Phillip Witheridge has now flown to China on a business trip. It will not be possible for the respondents' legal representatives to confer with him until after the commencement of the trial. The respondents have insufficient time to obtain proper instructions in relation to the matters in the purported outlines of evidence from other factual witnesses which it wishes to call at trial, let alone the purported opinion evidence of Mr Balthazaar and Mr Colyvan." 14 On or about 18 May 2007, the applicant filed and served an outline of evidence of Mr Antony Broom, who is a qualified mechanic. It also filed and served an outline of evidence of Mr Kevin Williams, who is a consultant engineer. Mr Williams states that he will prepare a full report of his examination of various motor cycles and vehicles. 15 Ms Bartlett swore a third affidavit on 21 May 2007. She deposed to the fact the respondents could not be ready for a trial commencing on 4 June 2007.

The respondents' notice of motion 16 The respondents' notice of motion dated 3 May 2007 was called back on on 22 May 2007 and, after hearing submissions, I made the following orders: "1. The applicant file and serve any expert reports complying with the relevant practice direction by 4.00 pm on 1 June 2007.

2. The respondents file and serve any expert reports in response by 4.00 pm on 29 June 2007. 3. The respondents file and serve a list of the witnesses to be called at the hearing and a copy of a statement in the form of an outline of the evidence of each witness by 4.00 pm on 29 June 2007. 4. No party call any expert evidence at trial which is not in a report filed and served under paragraphs 1 and 2 above without the leave of the Court. 5. The trial date be vacated and a new trial date be fixed for the weeks commencing 16 July 2007 and 23 July 2007 and, if necessary, the week commencing 13 August 2007.
3. I reserve my decision on orders 5 and 6 sought by the respondents." 17 Orders 5 and 6 sought by the respondents are as follows: "5. If the applicant does not comply with paragraph 1 the proceeding be dismissed as to the whole of the relief claimed by the applicant. 6. The applicant pay the respondents' costs incurred from 10 May to 22 May 2007 and the costs of the respondents' notice of motion dated 3 May 2007 and the costs of the hearing on 9 May 2007 and the costs of the hearing on 22 May 2007 and the costs occasioned by the adjournment on an indemnity basis." 18 As to order 5, the applicant opposed the making of a self-executing order and, as to order 6, it submits that if an order for costs is made against it the order should go no further than an order that the costs occasioned by the adjournment on a party and party basis be paid by the applicant to the respondents. 19 These reasons deal with the respondents' application for orders 5 and 6. 20 Before dealing with those matters, I need to say something about the extent of the applicant's failure to comply with the December orders as amended on 9 May 2007 and then I need to say something about my reasons for adjourning the trial and not making an order for the stay or dismissal of the proceedings. 21 There is no dispute that the evidence to be given by Mr Kevin Williams is evidence to be given by an expert witness and that a report from Mr Williams had not been filed and exchanged by 16 April 2007 or, indeed, by 22 May 2007. The failure to comply in this respect was the principal reason I considered it appropriate to adjourn the commencement of the trial. 22 There is no dispute that the applicant had not filed and served on the respondents by 14 May 2007, a list of the witnesses to be called at the hearing and a copy of the statement in the form of an outline of the evidence of each witness with references where appropriate to the court book. Indeed, the applicant had not filed and served on the respondents a list of the witnesses to be called at the hearing as at 22 May 2007. The respondents contend that, in addition to the evidence of Mr Williams, some of the evidence contained in the outlines of evidence is expert evidence and should have been filed and served by 16 April 2007 and should be in a form which complies with the relevant practice direction. I am not able to resolve that issue at this stage. For the purposes of this application only, I will proceed on a basis favourable to the applicant and assume that the evidence referred to in the outlines is not expert evidence. 23 There is no dispute that the applicant's solicitors did not, by 19 February 2007, serve on the respondents' solicitors a draft index for the proposed court book. The respondents contend that the index which was subsequently put forward is simply a reproduction of the applicant's discovered documents in the order in which they appear in the applicant's list of documents. It is not possible for me to resolve that issue at this stage. Again, for the purposes of this application only, I will proceed on a basis favourable to the applicant and assume that a draft index has been delivered but that that was not done within the time fixed in the December orders. 24 The Court has the power to make an order that the proceeding be stayed or dismissed. O 35A, r 2 and r 3 relevantly provide: "2(1) For this Order, an applicant is in default if the applicant:

(a) fails to comply with an order of the Court in the proceeding; or (b) fails to attend a directions hearing; or (c) fails to file and serve a pleading as required by Order 11; or (d) fails to serve a list of documents or an affidvait or other document, or does not produce a document as required by Order 15; or

(e) fails to do any act required to be done by thes Rules; or (f) fails to prosecute the proceeding with due diligence. … "3(1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b) a step in the proceeding be taken within the time limited in the order; or (c) the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant, if the applicant does not take a step ordered by the Court in the proceeding in the time limited in the order. …

(5) The Court may make an order of the kind mentioned in subrule (1) (2) or (4), or any other order, or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just." 25 Previously, the power to make orders of this nature was contained in O 10, r 7. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, Wilcox and Gummow JJ considered the principles which should govern the discretion to dismiss a proceeding under O 10, r 7 of the Federal Court Rules. In my respectful opinion, their Honours' observations apply equally to the power in O 35A, r 3(1). Their Honours said (at 396-397): "The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases -- whatever the applicant's state of mind or resources -- in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default." 26 I do not think that this case falls within either of the two situations identified by their Honours. Whatever else might be said about the applicant's failure to comply with Court orders and its failure to put forward an affidavit explaining in a clear and simple fashion the reason or reasons for those failures, I do not think that it can be inferred that its non-compliance is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. Nor do I think that this is a case in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondents. There has been non-compliance but I would not describe it as continuing, bearing in mind the outlines of evidence that have now been filed and the expert's report which will be filed. There has been delay and there has been some expense to the respondents, but I can make an order for costs in relation to that expense. In the end, I would not describe the applicant's conduct as amounting to "a significant continuing default". 27 In the circumstances, I considered it appropriate to decline to make orders staying or dismissing the proceedings and, instead, I adjourned the commencement of the trial for a relatively short period. 28 The respondents asked me to make a self-executing order in relation to the first order I made on 22 May 2007. In other words, they asked me to make an order that if the applicant does not comply with the first order then the proceedings do stand dismissed as to the whole of the relief claimed by the applicant. There is no doubt that I have the power to make such an order: O 35A, r 3(1)(c). I decline to do so. In Fisher v RAFCORP (WA) (1995) 57 FCR 1 at 19, the Full Court of this Court described such orders as unusual. I respectfully agree and I think that such orders should only be made in extreme cases. There may be many circumstances which arise subsequent to the making of such an order, which plainly call for a relaxation of a time limit fixed in the order and it would be unwise to place an obstacle in the way of a favourable exercise of the discretion. In my opinion, such an order should only be made when, in effect, all other efforts to ensure compliance have failed. The present is not such a case. 29 The respondents applied for the costs they incurred between 10 May and 22 May 2007, of the notice of motion dated 3 May 2007, of the hearings on 9 May 2007 and 22 May 2007 and of the adjournment of the trial on an indemnity basis. 30 In my opinion, the respondents are entitled to the costs of their notice of motion dated 3 May 2007. The applicant did not comply with the December orders as amended on 9 May 2007. They are also entitled to the costs of the hearings on 9 May and 22 May 2007 respectively because those hearings were primarily concerned with the variation of the December orders and the respondents' notice of motion. The respondents are also entitled to any costs occasioned by the adjournment of the trial. An adjournment of the trial was necessary because of the applicant's failure to comply with the orders of the Court and, in particular, the order as to the delivery of reports by expert witnesses. Finally, the respondents are entitled to any costs occasioned by the late delivery of statements. Clearly, those costs should be restricted to costs which have been wasted. 31 The Court's power to award costs is contained in s 43 of the Federal Court of Australia Act 1976 (Cth) and is a broad one. Order 62 of the Federal Court Rules deals with a number of matters relevant to an award of costs. 32 The ordinary rule is that costs are awarded on a party and party basis. From time to time, the Court has made an award of costs on a different basis. The authorities have identified various circumstances in which it may be appropriate to exercise the discretion to award costs on a different basis from a party and party basis. One such category is where there is evidence of particular misconduct by a party that causes loss of time to the Court and to the other parties. However, the authorities also make it clear that the categories of circumstances in which the Court may exercise its discretion to award costs on, for example, an indemnity basis are not closed. I refer to Colgate Palmolive v Cussons (1993) 118 ALR 248 at 254-257; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, unreported, 3 May 1991), Re Wilcox Ex Parte Venture Industries Pty Ltd (1996) 141 ALR 727 ("Re Wilcox"). The gap between party and party costs and indemnity costs may be increasing. However, while that may be a reason to review the scale rates, it is not in itself a reason to broaden the established criteria for awarding indemnity costs. As I understand it, that is a point made by Cooper and Merkel JJ in Re Wilcox (at 734). 33 I have carefully considered the circumstances in this case. Although the applicant's failure to comply with the Court orders cannot be described as minor and has led to the adjournment of the trial, I would not describe it as misconduct. In the circumstances, I decline to make a special order and costs will be payable on a party and party basis. 34 The final matter is that the respondents asked me to make an order that the costs be paid on or before a certain date. O 62, r 3(3) provides: "(3) An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order." 35 This is not a case in which it can be inferred that the applicant's failure to comply with Court orders is part of a delaying strategy by it, and the fact is that the trial will now take place on 16 July 2007. This means that the delay caused by the applicant's failures is a relatively short one. In the circumstances, I see no reason to depart from the general rule contained in O 62, r 3(3).

Conclusion 36 I decline to make an order that if the applicant fails to comply with order 1 made on 22 May 2007, its proceeding stands dismissed as to the whole of the relief claimed. 37 As to costs, I will make the following order: The applicant is to pay the respondents' costs on a party and party basis of the respondents' notice of motion dated 3 May 2007 and the hearings on 9 May 2007 and 22 May 2007, respectively, and their costs occasioned by the adjournment of the trial and any wasted costs incurred by the respondents and caused by the late delivery by the applicant of the outlines of evidence. I decline to order that those costs be paid on or before a certain date. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Solicitor for the Applicant: Mr Francis Gallichio

Counsel for the Respondent: Mr D H Denton SC with Ms M A Tran

Solicitor for the Respondent: Williams Graham Carman