//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] FMCA 1817
Federal Magistrates Court of Australia
2006-12-05
Mr J
Original judgment source is linked above.
(1)
Application dismissed.
(2)
Costs reserved.
On the fourth day of a hearing before him, Federal Magistrate Driver made certain orders in relation to the bringing of an application pursuant to s.17A of the Federal Magistrates Act 1999 that had been foreshadowed by him following a request for an adjournment that was made by the respondents on the first day. The summary judgment application was to be made by the applicants.
The orders which his Honour made, and which do not appear from the transcript to have been made over the objection of the solicitor for the respondents, provided a timetable for the filing and serving of written submissions first by the applicant and then by the respondent and then a timetable for the actual hearing of the application which is to take place on 12 December 2006. The final order made by his Honour was an order granting the parties liberty to apply for further orders or directions.
Mr Hennessy, who appears on behalf of the applicants, argues that the liberty to apply given by his Honour related only to the possibility that because of long-standing travel arrangements the solicitor for the respondents may not have been able to appear for them at the hearing. That certainly appears to be the context in which the orders were made but orders giving liberty to apply should only be constrained to the context in the most pressing of cases.
The respondents on 27 November 2006 sent a letter to his Honour's associate under this liberty to apply provision advising the associate that they would be seeking before his Honour certain further orders contained in a draft short minutes of order, copies of which were served upon the applicants. Those draft minutes set out a new timetable which provides for evidence to be filed and would effectively negate the summary judgment application.
Federal Magistrate Driver is part heard in these proceedings.
They have an unfortunate history, particularly in terms of compliance with the court's orders by the respondents. His Honour was no doubt sensible of these matters when he gave leave to the applicants to make the application for summary judgment. It would be inappropriate of me to step in during a temporary absence of his Honour due to illness and completely derail the processes that he has set in train.
Mr Tzovaras says that he wants to refile certain affidavits that have already been filed but were drafted in a form that could be said to be non-admissible. He also wished to produce additional evidence to meet the evidence provided by the applicants. A decision as to whether such evidence shall be admitted must remain with his Honour and it is therefore not necessary for me to give any orders in relation to the production of such evidence by the respondents because there is no difficulty with them producing the evidence, providing copies to the applicants and then asking his Honour whether or not he will now allow it to be read in the case.
Having read the transcript of what occurred before his Honour provided to me by Mr Hennessy I am of the view that this application should be dismissed and that the costs of the application should be reserved. The matter will hopefully be proceeding before his Honour on 12 December at 2.15 and either party would be at liberty to address him on any additional matters at that time.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Vivid Entertainment & Ors
Digital Sinema & Ors [2006] FMCA 1817