Wosley v Frost

Federal Court of Australia|1987-02-11|Before: French J, Burchett J

PRACTICE AND PROCEDURE - application entered for trial - motion by second and third respondents for leave to file cross claim against first respondent and another party ~ to set aside entry for trial

no third party notice or statement of claim in support - Leave previously given not acted on - desirability of resolving all disputes together - s.22 Federal Court Act ~ need for expedition in instituting third party proceedings - 0.5 Federal Court Rules ~ interlocutory steps almost complete - inconvenience to applicant

outweighing inconvenience to respondent - motion dismissed.

Trade Practices Act 1974 ss.52, 53 Federal Court Act 1976 s.22 Federal Court Rules 0.5 r.9

THE BELL GROUP LIMITED, BELL BROTHERS PTY LTD, BELL BASIC

INDUSTRIES LID, BELL TYRES PTY LTD and BELL FREIGHTLINES PTY LTD v FACOM AUSTRALIA LTD, POLICY NOMINEES PTY LTD trading as ACCESS

COMPUTER CONSULTANTS, ANTHONY ERRINGTON and MARTIN A. THOMAS FACOM AUSTRALIA LIMITED v THE BELL GROUP LIMITED, BELL BROTHERS

PTY LTD, BELL BASIC INDUSTRIES LTD, BELL TYRES PTY LTD and BELL

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

THE BELL GROUP LIMITED BELL BROTHERS PTY LID, BELL BASIC INDUSTRIES LTD, BELL TYRES PTY LTD and BELL FREIGHTLINES PTY LTD

Applicants AND FACOM AUSTRALIA LIMITED First Respondent POLICY NOMINEES PTY LTD trading as ACCESS COMPUTER CONSULTANTS

Third Respondents and FACOM AUSTRALIA LIMITED Cross Claimant and THE BELL GROUP LIMITED, BELL BROTHERS PTY LTD BELL BASIC INDUSTRIES LTD BELL TYRES PTY LTD and BELL FREIGHTLINES PTY LTD

That the applicants do by 4 pm on Friday, 13 February 1987 produce for the second and third respondents inspection of the document enumerated as number 4 in Schedule 1 Part 2 of the list dated 30 January 1986 and the documents enumerated as number 2(1),(2), (3) and (4) in Schedule 1 Part 2 of the applicants' list dated 18

The applicants do by 4 pm on Friday, 13 February 1987 serve the second and third respondents with a copy of each set of interrogatories together with the documents referred to therein administered by the applicants on

The first respondent do by 4 pm on Friday, 13 February 1987 serve the second and third respondents a copy of each interrogatory together with the documents referred to therein served by the first respondent on the

The applicants do by 4 pm on Friday, 13 February 1987 serve on the second and third respondents a true copy of each answer to the interrogatories filed by the

The first respondent do by 4 pm on Friday, 13 February 1987 serve on the second and third respondents a true copy of each answer to interrogatories filed by the

The second and third respondents are to pay the applicant's costs of the motion in any event and the second and third respondents are also to pay the first

Note ;: Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

THE BELL GROUP LIMITED BELL BROTHERS PTY LTD, BELL BASIC INDUSTRIES LTD

First Respondents and POLICY NOMINEES PTY LTD trading as ACCESS COMPUTER CONSULTANTS

Third Respondents and FACOM AUSTRALIA LIMITED Cross Claimant and THE BELL GROUP LIMITED, BELL BROTHERS PTY LTD, BELL BASIC INDUSTRIES LTD BELL TYRES PTY LTD and BELL FREIGHTLINES PTY LTD

These proceedings were instituted by the applicants on 22 January 1985. According to the statement of claim as amended by order of Burchett J. on 27 August 1986 the first respondent is a supplier of computing and data processing equipment. The second respondent is a consultant in relation to the evaluation, selection, purchase and implementation of computer hardware and software. The third respondents were at all material times

The second respondent was engaged by the applicants to carry out a feasibility study for the applicant and to recommend and select computer hardware and software in accordance with their

The second respondent by the third respondent Errington, 1s said to have prepared a specification for the supply of computing facilities to the applicant. The first respondent subsequently submitted a written proposal to the second

Various representations were allegedly made by the first respondent, in particular relating to the compatibility of certain software produced by Management Science of America Inc. ("MSA") with the first respondent's hardware and operating systems. MSA representatives were also alleged to have represented to the

applicant that MSA had worked with the first respondent in

computer installation and that the question of compatibility had been adequately addressed. It was said, however, that the first respondent was or should have been aware that MSA software would not be compatible with the first respondent's hardware and

The second respondent allegedly recommended to the applicants that they purchase the first respondent's hardware and operating systems and the MSA software. The recommendation report was said to have been written by the third respondent, Errington,

Subsequently the applicants entered into contracts with the first respondent and MSA for the purchase of hardware and certain software systems and also into an agreement for the

maintenance of the first respondent's data processing equipment.

It is alleged in the statement of claim that the first respondent's hardware and operating systems were incompatible with

and unable to perform in conjunction with the MSA software.

The statement of claim pleads contraventions of ss.52 and 53 of the Trade Practices Act 1974 by the first respondent and second respondent together with breach of contract and negligence. The third respondents are also said to have been in breach of

The applicants claim damages under s.52 of the Trade

At a directions hearing before Toohey J. on 28 February 1985 the second respondent sought and obtained leave to file and serve within 14 days third party notices and a statement of claim in third party proceedings against the first respondent and MSA. Directions were also then given setting out a timetable for the

On 22 May 1985 a further order was made by his Honour, extending the time within which the second respondent had leave to file third party notices against the first respondent and MSA by a

At a callover heard before his Honour on 22 December 1985, the solicitor who appeared for the second and third respondents was evidently not aware of the order made with respect to third party proceedings earlier as he had not then had the conduct of the file in his office. In the event no such

In the meantime the application has progressed to the point where discovery has been given and_ interrogatories administered and answered between the parties. Without recounting detail there seems to have been a good deal of interlocutory

skirmishing along the way. It appears, however, that the matter

is close to the point of readiness for trial 1f not actually ready

On 16 January 1987 the applicant filed a notice of trial under 0.30 r.1 of the Federal Court Rules. As yet no date for

The motion filed by the second and third respondents which comes before me for determination seeks various orders, the most important of which are set out in paragraphs 4, 5 and 10 of

"4. The Second and Third Respondents have leave to file a cross claim for contribution or indemnity on the First Respondent.

The Second and Third Respondents have leave to file a cross claim for contribution or indemnity upon the company Management Science America (Australia) Pty Limited -

Any notice of cross claim filed by the Second and Third Respondents be filed within 14 days after the service on the Second and Third Respondents of

interrogatories and answers to interrogatories referred to herein."

The motion seeks to set aside the entry for trial filed

No proposed third party notice or statement of claim is tendered in support of the motion. At best, vague statements have

been made to the effect that the pleadings as amended show that

the second and third respondents would have a strong case against the first respondent and MSA's Australian subsidiary. It is contended that it would be in the interests of all concerned to have one rather than separate pieces of litigation. So much is

true and 1s recognised by s.22 of the Federal Court Act which

"The court shall in every matter before the court grant either absolutely or on such terms and conditions as the court thinks just all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the Matter so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."

On the other hand, the need for expedition in instituting cross claims is emphasizd by 0.5 r.9 of the Federal

"9(1) A respondent desiring to cross claim after the directions hearing shall obtain all necessary

directions at the directions hearing in relation to the cross claim including the time within which the

(2) A respondent who does not obtain directions pursuant to subrule 1 shall not cross claim after the directions hearing without the Leave of the court."

"11(1) Subject to this order and to order 11 a proceeding on a cross claim shall follow as nearly as may be the course of the proceeding on the

originating process in respect of which the cross claim is filed."

Leave to issue a third party notice should generally not be granted if, by reason of the lateness of the application, the inconvenience to a plaintiff through the consequent delay outweighs the inconvenience to a defendant in not having a principal proceeding and the third party claim heard at the same

These proceedings have lurched rather than progressed towards trial, but like the rough beast of the poet, their hour

To accede to the second and third respondents' motion at this stage would institute a fresh train of interlocutory steps by way of pleadings, discovery and possibly interrogatories before

any third party proceedings would be ready for trial.

In all the circumstances it would, in my opinion, be quite unjust to grant the orders sought in paragraphs 4, 5, 10 and

Paragraphs 1 and 2 of the motion are not pressed by the second and third respondents, nor can I accede to the order with respect to interrogatories in paragraph 12 which seeks' the

"Alternatively in paragraphs 1 to 3 hereof the second and third respondents have leave to interrogate the applicants within 14 days requesting that the applicants identify those parts of the documents which are claimed

matters in question between the applicants and the second respondent and the applicants and the third

Such a subject 1s not, in my opinion, appropriate matter for interrogatories. By consent however, I am prepared to make the orders sought in paragraphs 3, 6 and 7 of the motion subject

I hereby certify that this and the | preceding seven (7) pages are a true copy of the Reasons for Judgment

Counsel for the Applicant: Mr M. Bennett Solicitor for the Applicant: Keall Brinsden Counsel for the First Respondent :

Parker & Parker Counsel for the Second and Third Respondents:

Mr M. Hawkins Solicitors for the Second and Third Respondents:

At a glance

Court

Decision date

Before

Source

Judgment (72 paragraphs)

Parties

Cases Cited (1)