Searle B A v Keayes P & Ors [1994] FCA 1063

WSB (No 17) PTY LIMITED (ACN 058 901 170) Sixth Respondent

CORAM : TAMBERLIN J PLACE : SYDNEY DATED : 21 December 1994

This morning an application has been made by the third respondent, Brisalebe AG Limited (Brisalebe) for leave to file a defence and cross-claim. A notice of appearance was also filed in court this morning on behalf of Brisalebe. Today is the tenth day of the hearing and is the last day for the

~-2- The application is opposed by Mrs Bronwyn Searle, the applicant in the main proceedings, but not by the second respondent, Mr Peter Keayes. No evidence has been tendered in support of or in explanation of the application. It has been indicated by counsel that Brisalebe does not propose to call any evidence, tender any documents or cross-examine any witnesses but wishes merely to address the court in support of the defence and cross-claim and the orders sought in the

The defence sought to be filed basically does not admit matters alleged in the statement of claim and claims that Brisalebe is entitled to 23 per cent of the capital of Brisalebe AG (AG), a Swiss corporation. The statement of claim alleges that such shareholding was secured by Brisalebe as the result of a breach by Peter Keayes of fiduciary and other obligations. By the cross-claim Brisalebe seeks a declaration that it owns 23 per cent of the capital of AG and

that AG exclusively holds the absolute interest in certain

The amended application is dated 3 June 1994 and the statement of claim was filed on 20 June 1994. The proceedings have been the subject of directions hearings and Brisalebe has neither entered an appearance nor filed any pleadings nor put on any evidence in the proceedings prior to this application. Senior counsel for Mrs Searle indicates to me that his client's case

has been conducted on the basis of the issues raised in the

• 3 - pleadings to date. He has referred me to the judgment of Rodgers J in the case of Coopers Brewery Limited v Panfida

He submits that Brisalebe has had a reasonable opportunity to conduct its case. He says that there would be patent prejudice to his client if new issues are sought to be raised at this late stage and indicates that his case has effectively been closed and that his case has been run on the assumption

that certain matters were not in issue on behalf of Brisalebe.

I can see great force in the submissions made on behalf of Mrs Searle in this matter. I consider that the cross-claim does raise some further issues and particularly as to the rights of AG as to the ownership of the patents and the circumstances in which the rights in the patents were acquired or transferred to it. These are matters on which Mrs Searle may have wanted

Furthermore, in relation to the proposed defence, matters which were previously not put in issue between Brisalebe and Mrs Searle are now sought to be put in issue. In addition to questions of fairness as between the parties, there is the further important consideration alluded to in my earlier judgment of 21 November 1994 in this matter as to the need for effective case management and court administration. The interests of other litigants must be considered and not only

the interests of the parties to the particular proceeding.

-4- Where a party, being fully aware of the proceedings, has elected not to take an active part then it should not be permitted to raise further issues at the last minute unless

In relation to this application there is simply no explanation as to why the application is made at this late stage nor is any evidence proffered to ground an application or demonstrate any exceptional circumstances. Having regard to what I have said above, I dismiss the application by Brisalebe to file the defence and cross-claim. I make no order as to the costs of the application. However, I am prepared to allow Brisalebe to make written submissions on the evidence in this matter in so far as the evidence affects its position and to address orally on those submissions but on the strict basis that it will bear its own costs of doing so, whatever the outcome of these

pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin.

Counsel for Third Respondent Solicitors for Third Respondent Date of Hearing :