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[2003] FCA 519
procedural. The notice of motion was dismissed. The hearing date of 10 June 2003 was not vacated. The applicant to the motion was ordered to pay the respondents to the motion's costs. The Court confirmed that...
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The Court refused to postpone a hearing in a long-running dispute. A proposed share sale might have changed who owned two corporate parties, but the Court had no reliable evidence that the sale would happen or that the prospective purchasers would resolve or abandon the litigation before the hearing. The Court also noted that the relevant directions had been known since 2 April 2003. It dismissed the motion, ordered the moving parties to pay costs, and kept the 10 June 2003 hearing date. The judgment decided only these procedural requests, not the underlying property dispute.
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1,882 words · generated 30/09/2026
This is a short procedural judgment of Allsop J in the Federal Court of Australia, delivered on 23 May 2003. It concerns a motion to change the timetable in existing litigation, not a determination of the parties' underlying property rights.
The substantive proceedings involved Owston Nominees No 2 Pty Limited and Warren Perry Anderson as applicants, and Branir Pty Limited, Tovehead Pty Limited, and Aburizal Bakrie as respondents. The moving parties were the first, second and third respondents to the proceedings. They sought to vacate directions made on 2 April 2003, vacate the hearing date of 10 June 2003, and have the matter stood over for further directions during the week commencing 14 July 2003 ([1]). The Court dismissed the motion and ordered the applicant to the motion to pay the respondents to the motion's costs ([8]–[9]).
The setting was a long-running dispute involving property called Tipperary. Allsop J described outstanding applications concerning property boundaries and the parties' rights in connection with Tipperary. There was also a dispute about the boundaries of a mango plantation and whether those boundaries had already been dealt with in the primary judge's reasons and, implicitly, the orders. That question had not been debated on appeal ([2]). The judgment does not resolve those substantive questions.
The immediate explanation for seeking a postponement was a conditional contract that, if completed, would remove Mr Bakrie as a shareholder from Branir and Tovehead. The companies themselves would remain involved in the dispute ([4]). Counsel for the moving parties submitted that future owners might not wish to pursue the litigation. The Judge accepted that this was possible, but noted there was no evidence that the prospective purchasers had been told the detail of the litigation or were willing to abandon it on terms that could save time and resources ([5]).
The motion therefore turned on a practical uncertainty: whether a possible change in share ownership was likely to result in an agreed resolution before the already listed hearing. The Court had no reasonable assurance that the share sale would proceed, or that an accommodation could be reached in time ([6]). It declined to vacate the hearing. A renewed request, based on difficulty filing further motion and affidavit material, was also refused. The Judge noted that the relevant directions had been known since 2 April 2003 and confirmed that the matter would proceed on 10 June ([10]–[12]).
The reasons are focused on the evidential basis for changing the timetable. The Court did not treat the possibility of a sale or settlement as enough, by itself, to justify losing the listed hearing date. The moving parties needed, in the circumstances described, to provide some reasonable assurance both that the sale was likely to complete and that the prospective purchasers could reach an accommodation with the Anderson interests before 10 June ([6]).
The judgment identifies concrete gaps in the material. Although Mr Bakrie apparently had arranged a conditional contract, the companies would remain parties even if he ceased to be a shareholder ([4]). The Judge had no evidence that the prospective purchasers had been apprised of the detail of the litigation, or that they were willing to discontinue or settle it on terms that would save the parties and the Court time ([5]). The relevant possibilities were therefore not demonstrated as sufficiently likely or timely to justify vacating the hearing.
The Court also took account of the interests affected by delay. Allsop J said that the due administration of justice required the matter to be brought to completion as soon as possible, and expressly recognised that Mr Anderson and his interests were entitled to see that happen ([7]). This was not an abstract statement that every listed hearing must proceed regardless of circumstances. In this case, the Court balanced an uncertain prospect of settlement against the burden of further delay in an already prolonged proceeding.
The renewed application involved a separate practical concern: the asserted inability to file further motion and affidavit material in time. The Judge did not set out the detail of the proposed further motion, saying that it had been identified on the transcript but would not be repeated ([10]). Instead, the reasons emphasised that Mr Bakrie and his interests had known of the directions since 2 April 2003 ([11]). The Court declined to change the hearing date on that basis.
The judgment does not state a formal test for adjournments, cite procedural rules, or refer to other cases. Its reasoning is consequently best understood as a case-specific exercise of case-management judgment. It is not authority, on the text available here, for a comprehensive rule about when an adjournment must or must not be granted.
The judgment does not describe the state of the law before the decision, nor does it purport to alter or develop a legal doctrine. It contains no citations to legislation, court rules, or earlier judgments. It also does not announce a new test for adjournments or hearing-date changes.
What it does show is how Allsop J approached this particular request. The Court examined whether the proposed corporate ownership change was likely to happen and whether it could produce a resolution before the hearing. The absence of evidence on those matters weighed against vacating the date ([5]–[6]). The Judge also weighed the need to bring the existing dispute to completion and the impact of further delay on the opposing interests ([7]).
Accordingly, the distinction is between a possible future event and evidence of a sufficiently likely, timely consequence of that event. The reasons do not say that a proposed sale can never support an adjournment. They show that, here, the possibility of a sale and the possibility that new owners might not continue the litigation were not accompanied by the assurances the Judge considered necessary in the circumstances.
Nothing in this judgment establishes how later courts treated it. The document supplied contains no subsequent history or later citations. Any account of later treatment would require sources beyond this judgment, so no claim about later judicial treatment can be made from this text alone.
At [5], the Judge accepted that future owners might or might not want to pursue the litigation, but noted the absence of evidence that they had been told its details. In plain English, a possible change in ownership did not establish that the new owners would actually discontinue the case or negotiate a resolution.
At [6], the Judge said there was no “reasonable assurance” that the sale would proceed and that the purchasers could reach an accommodation before 10 June. The practical point is that the Court was not prepared to postpone the hearing based on an uncertain transaction and an unconfirmed prospect of settlement.
At [7], the Judge said the “due administration of justice” required the matter to be brought to completion as soon as possible. In context, this reflected the history of the litigation and the opposing parties' interest in having it progress. It explains the weight placed on avoiding delay, rather than supplying a general rule that every case should proceed on its first listed date.
At [10]–[11], the Court considered a renewed request based on difficulty filing further material. The Judge declined to vacate the date and observed that the relevant directions had been known since 2 April 2003. In plain English, the timing difficulty did not persuade the Court to move the hearing in the circumstances presented.
Finally, [12] states: “This matter is proceeding on 10 June 2003.” That sentence makes the practical result explicit. The motion did not change the hearing date.
This decision is most directly relevant to a procedural situation with features like those recorded in the judgment: a hearing is already listed; a party seeks to vacate it because a possible corporate transaction may change ownership; the companies involved would remain parties; and there is little evidence that the transaction will complete or lead to a resolution before the hearing.
The judgment may also be relevant where a party relies on a prospective purchaser's possible willingness to abandon litigation, but the evidence does not show that the purchaser knows the litigation's details or has committed to resolving it. The significance of those facts here was that the Judge could not assess the prospect of timely accommodation as sufficiently reliable ([5]–[6]).
A further analogous feature is a renewed request to vacate a hearing because of difficulty meeting directions that have been known for a period of time ([10]–[11]). The decision records that history as a reason for maintaining the date, but does not specify the evidence or circumstances that might produce a different result.
The judgment should not be stretched to cover all adjournment requests. It does not address emergencies, the unavailability of a party or witness, newly discovered evidence, or other common reasons a hearing date may be changed. Nor does it set out the governing procedural rule or a general balancing framework. Its value lies in the close factual illustration of how uncertainty about a proposed transaction and settlement affected a case-management decision.
The supplied judgment contains no discussion of later decisions, and the material provided does not include any subsequent judicial history. It is therefore not possible, based only on this source, to say whether later courts followed, distinguished, applied, or otherwise treated this decision.
The judgment itself does not cite any precedent. Its reasoning is brief and tied to the evidence about the proposed share sale, the prospective purchasers' knowledge and intentions, the existing directions, and the need to progress the litigation ([4]–[7], [10]–[12]). That limited scope matters when considering its use: the text supports describing the outcome and its factual reasoning, but not attributing to it a broad doctrinal rule or a later precedent status.
Several matters remain unresolved in the judgment because they were not necessary to decide the motion. First, the Court did not determine whether the mango plantation's boundaries had already been dealt with in the primary judge's reasons or orders. It recorded that the matter was disputed and had not been the subject of debate on appeal ([2]).
Second, the judgment does not establish whether the conditional sale completed, whether the prospective purchasers later became shareholders, or whether any accommodation was reached. It records only that Mr Bakrie had apparently arranged a conditional contract and that the Court had no evidence of the purchasers' intentions or knowledge at the time ([4]–[6]).
Third, the Court did not explain the precise nature of the further motion and affidavit material that could not be filed in time. Allsop J expressly declined to repeat the character of that motion as identified on the transcript ([10]). The reasons therefore do not allow a detailed assessment of the filing difficulty.
Finally, the judgment does not formulate a general legal test for vacating a hearing date, discuss applicable rules, or predict the outcome of the substantive proceedings. Those questions cannot be answered from this decision alone.
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REASONS FOR JUDGMENT 1 In this matter the first, second and third respondents in matter number NG3184 of 1995 have filed a notice of motion returnable instanter seeking the following orders: 1. that the directions made on 2 April 2003 be vacated; 2. that the hearing date of 10 June 2003 be vacated; and 3. that the matter be stood over for further directions for mention during the week commencing 14 July 2003. Other consequential orders were sought. 2 The motion arises in the following way. The matter is listed for hearing on 10 June 2003 to deal with some not straightforward applications concerning the boundaries of the properties and the rights of the parties in connection with the property "Tipperary", which was the subject of the first instance hearing before Einfeld J. I was a member of the Full Bench which dealt with this matter in 2001. The matter came back before me last year because of a dispute about, amongst other things, a mango plantation. There is a debate between the parties as to whether the boundaries to this mango plantation have been dealt with in the reasons for judgment, and implicitly in the orders, of the learned primary judge. The matter was not the subject of any debate on appeal. 3 I do not wish to set out the history of these issues since they were raised late last year. Some considerable time of myself, counsel and solicitors has been spent ascertaining and deliberating upon the precise nature of the applications involved, the jurisdiction of the court and the relevant evidence concerning them. It has not been an easy task. It has not been aided, I think, by the fact that primary interests behind the corporate entities involved, being Mr Anderson and Mr Bakrie, by this stage in their relationship, do not appear to be able to resolve this matter amicably or commercially. That is not a personal criticism of them. They have been in litigation for some time. They have fallen out. In part that is the way of the world. I should also add that none of those comments reflect in any way on the legal practitioners involved for both sides. 4 Mr Bakrie now, apparently, has arranged a conditional contract which gives some ground to expect that he will be removed as a shareholder from the two principal companies involved in the remaining matters in this Court, Tovehead Pty Ltd and Branir Pty Ltd. By reason of that share sale, if it completes, Mr Bakrie will remove himself from this dispute. However, Tovehead and Branir, the separate corporate entities, will not be removed from the dispute. 5 Mr Kunç, perfectly correctly, puts to me that the future owners of Tovehead and Branir may or may not want to pursue this litigation. I accept that. However, I do not have any evidence before me of the willingness of those prospective purchasers to abandon this litigation on terms that might save the parties and the Court any time. I do not have any evidence before me that they have been apprised of the detail of it. 6 In the absence of some reasonable assurance, (a) of the likelihood of the sale proceeding and, (b) the likelihood that the purchasers will be able to reach an accommodation with the Anderson interests sufficiently prior to 10 June to avoid the necessity of the parties and the Court expending time and money in the debate, I do not propose at this stage, now almost mid-way through 2003, to adjourn the hearing. 7 It may be that what I have said might provoke further facts which might lead to an agreeable accommodation whereby the matter can be stood over. However, the due administration of justice demands in my view that this matter be brought to completion as soon as possible. Mr Anderson and his interests are entitled to see that happen. If there is no agreed vacation of that date then the matter will be proceeding. 8 I dismiss the motion. 9 I order that the applicant to the motion, that is the first, second and third respondents to the proceedings pay the costs of the respondents to the motion, that is, the applicants to the proceedings. 10 Mr Kunç renews his application to vacate the date on the basis that the further motion and affidavit material contemplated by order 1 of the orders of 2 April 2003 cannot be filed in time. That further motion was of a character just identified by Mr Kunç on the transcript, which I won't repeat, but I don't propose to vacate the hearing date of 10 June 2003. 11 One thing that could be said about both sides in this dispute is that they are mature, adult (in the general sense) commercial interests. Mr Bakrie and his interests have known of those directions since 2 April 2003. 12 This matter is proceeding on 10 June 2003. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.
Associate: Dated: 2 June 2003 Counsel for the Applicant: D Robinson
Solicitor for the Respondent: Blake Dawson Waldron
Owston Nominees No 2 Pty Limited
Branir Pty Limited
The notice of motion was dismissed. The hearing date of 10 June 2003 was not vacated. The applicant to the motion was ordered to pay the respondents to the motion's costs. The Court confirmed that the matter would proceed on 10 June 2003.