Robinson, N.E. v. Syefile Pty Ltd & Ors [1985] FCA 495

Federal Court of Australia|1985-09-09|Before: Lockhart J

) ) VICTORIA DISTRICT REGISTRY ) No. VG 248 of 1984 ) GENERAL, DIVISION )

' BETWEEN : NANCY ELEANOR ROBINSON Applicant AND: SYEFILE PTY. LIMITED

On 5 July 1985 this case was first specially fixed for hearing for 29 August. The trial could not then commence due to circumstances beyond the control of the parties, but the trial was

on the ground that the applicant had, as late as this morning, filed a

supplementary list of documents in the matter which referred to

edocuments that on the face of the list went to critical issues in the case. Counsel for the first and second respondents joined in that

Discussion between counsel and the Bench established that lists of documents had been filed as long ago as April this year and that inspection had taken place soon after the lists were filed. The applicant's answers to interrogatories were not sworn in fact until 27 August 1985, and filed on 4 September. Certain of the answers to

interrogatories suggested to the solicitors for the third and fourth respondents that there were documents in the possession, custody or

power of the applicant which had not been discovered.

Correspondence then apparently ensued between the solicitors which led to the filing of the supplementary list by the applicant. The reason for this unfortunate occurrence lies in an oversight by the solicitors for the applicant. Upon being informed of these matters I stood the matter down until 4.00 p.m. this afternoon so that counsel for the respondents could inspect the documents referred to in the supplementary list and consider their clients' position in the matter.

When the matter resumed at 4 o'clock this afternoon counsel for the third and fourth respondents informed the Court that he sought to have the matter adjourned because a brief perusal of the documents produced by the applicant revealed what appeared at this stage to be the necessity to have thém inspected by an accountant nominated by the third and fourth respondents, who no doubt 'in due course would have to

Also, although this was only relied upon incidentally, it seems that certain of the documents referred to in the list of documents were not in fact produced in Court, being bank statements and bank deposit slips. Counsel for the first and second respondents

The application for adjournment was not opposed by counsel for the applicant in all the circumstances. I propose to grant it and

to adjourn the matter until the next call-over of matters in

All respondents ask for an order for costs in their favour caused by the trial being aborted. Nothing is offered in opposition to such an order. I propose to make an order that the costs thrown away by the adjournment of the matter today be paid in any event by the applicant; but I note in this regard the statement by counsel for the applicant in Court that, although the costs would be borne by the applicant, in truth she will be indemnified for them by her solicitors so that she will not be herself out of pocket.

There remains the question of amendment to the pleadings. Counsel for the applicant seeks to amend the statement of claim in the terms and manner set out in exhibit l. That is not opposed by the

That the matter be adjourned to the next call-over in

That the costs of the respondent thrown away by reason of the adjournment of the matter today be borne in any event by the applicant.

Leave be given to the applicant to amend her statement of claim as set out in exhibit 1, the amended statement of claim to be filed and served on or before 16 September 1985.

Leave be given to the respondents to file and serve amended defences to the amended statement of claim on or before 23 September 1985.

The costs of and occasioned by the amendments to the statement of claim are to be paid by the applicant in any

| cartify that this and the Hyree (3) preceding pages are a true copy of the Reasons for Judgment herein of his Honour

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)