Re Charlie Carter Pty Ltd v the Shop, Distributive and Allied Employees' Association of Western Australia, the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch, the Australian Meat Industry Employees Union, T [1987] FCA 10 (22 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: CHARLIE CARTER PTY LTD
And: THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN
AUSTRALIA, THE TRANSPORT WORKERS UNION OF AUSTRALIA, INDUSTRIAL UNION OF
WORKERS, WESTERN AUSTRALIAN BRANCH, THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES
UNION, THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES UNION, FEDERATED CLERKS UNION OF
AUSTRALIA, CLIVE BROWN, and JOE BULLOCK
No. WAG 74 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.

CATCHWORDS

Practice and Procedure - application for injunction and damages for contravention of s.45D Trade Practices Act 1974 - interlocutory injunction granted - directions as to filing and service of statement of claim - directions not complied with - application for extension of time one month after expiry - supervisory role of Court under directions procedure - application under O.10r.7 to dismiss proceeding - applicable principles - duty to proceed speedily where interlocutory injunction - discharge of injunction for delay in prosecution.

Trade Practices Act 1974 s.45D

Federal Court Rules O.10 r.7

Birkett v James (1978) AC 297

Allen v Sir Alfred McAlpine and Sons Limited (1968) 2 QB 229

Greek City Co. Ltd v Demetriou (1983) 2 All ER 921

HEARING

PERTH
22:1:1987

Counsel for the Applicant: Mr Nisbet instructed by Ilbery Barblett & O'Dea

Counsel for the Second Respondent: Mr Le Miere instructed by Dwyer Durack and Dunphy

Counsel for the Third Respondent: Mr D. Schapper instructed by D.H. Schapper.

ORDER

The injunction granted against the second respondent on 23 July 1986 be and is hereby dissolved.

The applicant pay the second respondent's costs of its motion dated 13 January 1987 in any event.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3).)

The motion of the third respondent dated 9 December 1986 be dismissed.

The applicant pay the third respondent's costs of the motion in any event.

The orders of Toohey J. made on 3 November 1986 be varied so that:-

(1) the applicant do file and serve on the respondents
by 27 January 1987 a statement of claim;
(2) each of the respondents file and serve on the
solicitors for the applicant a defence by 10 March
1987;
(3) the applicant file and serve on the respondents any
reply to the defences on or before 31 March 1987;
(4) any particulars of the statement of claim or of the
defence be sought within 14 days of receipt of the
pleading and such particulars be answered within 14
days of the request;
(5) the directions hearing in this matter be relisted
for 9.15 am on 14 April 1987;
(6) the applicant pay the second and third respondents'
costs of its motion dated 16 January 1987 in any
event;
(7) a sealed copy of this order be served on each of
the first respondent, fourth respondent, fifth
respondent and sixth respondent within 14 days of
today's date and affidavits of service be filed
within 7 days thereafter.

Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3).)

DECISION

The applicant in this case has carried on business for many years in Western Australia as a retail grocer. It conducts some 25 supermarket stores in the Perth metropolitan area and has a central warehousing facility in the city of Perth.

2. On 23 July 1986 the applicant filed an application in this Court seeking injunctive relief and damages against the respondents in respect of alleged contraventions of s.45D of the Trade Practices Act 1974.

3. The application claimed in addition, and in the alternative, damages for interference with contractual relations, intimidation, nuisance and conspiracy.

4. It appears that the application arose out of bans allegedly imposed on the applicant by reason of a change in its policy with respect to the hiring of casual staff.

5. No statement of claim accompanied the application but some 11 affidavits were filed with it.

6. A claim for interlocutory relief was incorporated in the application and was heard ex parte by Muirhead J. on the afternoon of 23 July.

7. His Honour granted the injunction in the following terms:-

"An injunction is hereby granted restraining the
respondents and each of them by themselves, their
servants and agents from imposing, maintaining, giving
effect to or enforcing any ban on the provision of goods
or services to the applicant at either the head office
or warehouse in Aberdeen Street, Perth or any of its
retail stores in the Perth metropolitan area or from
setting up or maintaining any picket line at or in the
vicinity of such head office, warehouse and stores where
any such ban or picket line has as one of its purposes
and would have or be likely to have the effect of
preventing or hindering the ordinary day to day
activities and operations of the business of the
applicant including:-

(a) the delivery of any goods or services to any of the
premises of the applicant;

(b) doing any act by way of picketing or otherwise
which in anyway obstructs or interferes with the
passage of any person whether on foot or in a
vehicle proceeding to or from any of the
applicant's premises;

(c) intentionally following any vehicle driven by any
person to or from such premises;

(d) threatening by words or conduct any person
approaching or leaving such premises;
(e) jostling, assaulting or threatening to jostle or
assault any person approaching or leaving the
premises;

(f) standing in line on any roadway, lane or footpath
of vehicular or pedestrian traffic in such a manner
as to hinder freedom of passage to or from such
premises."

8. An injunction was also granted restraining the respondents and each of them by themselves, their servants and agents from:-

(a) aiding, abetting counselling or procuring any
person or persons to engage in the aforesaid
conduct;

(b) inducing or attempting to induce a person or
persons whether by threat, promises or otherwise to
engage in the aforesaid conduct;

(c) being in any way either directly or indirectly
knowingly concerned in or party to engagement in
the aforesaid conduct;

(d) conspiring with any other person or persons to
engage in the aforesaid conduct.

9. Liberty was given to the respondents to apply to set aside or vary the provisions of the order on five days notice.

10. Copies of the application, supporting affidavits and the order made on 23 July were served on the various respondents on 24 and 25 July 1986.

11. On 8 September 1986 a letter was sent to the Registrar of this Court by the solicitors for the second respondent indicating their wish to apply to set aside the injunction in its application to the second respondent and asking that the matter be relisted for further hearing. The motion to set aside the injunction was listed for hearing before Toohey J. on 18 September.

12. At that time the applicant and the second respondent were represented by counsel.

13. There was no appearance for the other respondents.

14. His Honour refused the motion to discharge the injunction but gave leave to the second respondent on 7 days written notice to apply to set aside or vary its provisions.

15. The transcript of those proceedings show that counsel for the applicant undertook that within 21 days he would ask the Court to list the matter for a directions hearing.

16. A letter requesting the listing of the matter for a directions hearing was sent to the Registrar on 9 October 1986 and a directions hearing was fixed for 2.15 pm on 3 November 1986.

17. On that occasion it appears that all but the sixth respondent were represented.

18. After hearing counsel his Honour made orders which included the following:-

"1. The applicant file and serve on the respondents
solicitors by 15 December 1986 a statement of
claim.

2. Each of the respondents file and serve on the
solicitors for the applicant a defence by 26
January 1987.

3. Any particulars of the statement of claim or of the
defence be sought within 14 days within receipt of
the pleading and be answered within 14 days of the
request."

19. The directions hearing was adjourned to a date to be fixed.

20. On 7 November 1986 his Honour, by consent, on a motion from the third respondent, made an order discharging the injunction to the extent that it applied to that respondent and reserved the costs of that motion. So far as the fourth respondent was concerned, there was also an order made that the injunction granted against that respondent be discharged and that the costs of his motion be reserved.

21. At 15 December 1986 no statement of claim had been filed as directed by his Honour's order of 3 November.

22. On 19 December the third respondent filed a motion returnable on 20 January 1987 for an order that the proceedings against the third respondent be struck out and that it pay the third respondent's costs.

23. A similar motion was filed on 13 January 1987 on behalf of the second respondent, but also sought an order that the injunction granted against the second respondent be dissolved.

24. On 16 January the applicant responded by filing a motion seeking an extension of the time limited for filing of a statement of claim for 14 days.

25. When the matter came on for hearing before me on 20 January the applicant and the second and third respondents were represented, the motions not having been served on the other parties. After hearing argument from counsel for all three, I adjourned the motions to 2.15 pm on 21 January to enable the applicant to file an affidavit explaining its non compliance with the Court's order.

26. I also afforded to the second and third respondents an opportunity to file any affidavit supporting their claims of prejudice by reason of the delay in the prosecution of the proceedings. No affidavits were filed by them.

27. In an affidavit sworn on 21 January the applicant's solicitor set out the chronology of proceedings up to date indicating that he had started work on the first draft statement of claim and prepared successive drafts between 6 and 25 November 1986. Subsequently he sent to senior counsel, under cover of a letter of 11 December 1986, a draft with which he was happy, with a request that counsel settle it as soon as possible.

28. In the affidavit he said:-

"I was aware that I was going to run into time
difficulties because of the order that I file a
statement of claim by 15 December. My intention was to
wait until the statement of claim was settled ... and
then make application to the Court for an extension of
time in which to file the statement of claim, and then
file the statement of claim as settled ... with the
application."

29. Nothing further happened until 8 January 1987 when he received the third respondent's motion already mentioned and on the same day telephoned counsel and left a message with his secretary about the motion and its return date asking if he could have the statement of claim settled in time to file it on the return of the motion of the third respondent.

30. On 14 January he was telephoned by senior counsel who informed him that he was on vacation but had received his message. Senior counsel gave oral advice concerning the drafting of the statement of claim and informed the solicitor that he would be back in his office on 19 January 1987. He was to have a new draft statement of claim ready for him to consider then. Immediately after that conversation the solicitor set about making significant changes to the draft which in its altered form, was sent to counsel under cover of a letter dated 15 January 1987.

31. The affidavit went on:-

"As a result of the foregoing I appreciate that I am in
delay and I apologise to this Honourable Court for my
delay in dealing with the filing of the statement of
claim herein. The matter is not easy. It is most
complicated. I could have filed a statement of claim
which would have served the purpose of complying with
the order, but in the knowledge that it would have
required amendment to conform with what ... (counsel)
... had settled. Apart from any implications of
dishonesty, in my experience such a step is fraught with
difficulty and only occasions extra expense and delay.
My philosophy is that you are far better off getting it
right the first time. This minimises expense and delay
in the overall context of the action."

32. He also affirmed the applicant's intention to prosecute the matter to trial.

33. On the question of prejudice suffered by the second and third respondents, he maintains that there was none. In relation to the injunction he contended that the order stopped the respondents from performing acts in themselves unlawful and he failed to see how this could prejudice those respondents.

34. As to the bringing of the action to trial, he said the statement of claim would be filed as soon as settled by senior counsel and in that regard he had spoken with counsel on the afternoon of 20 January and the morning of 21 January and had been informed that the statement of claim would be settled by him by close of business on 23 January 1987.

35. The respondents' application is brought under O.10 r.7 which provides in the following terms:-

"1. Where a party fails to comply with an order of the
Court directing that party to take a step in the
proceeding, any other party may move the Court on
notice -

(a) if the party in default is an applicant -
for an order that the proceeding be
stayed or dismissed as to the whole or
any part of the relief claimed by him in
the proceeding;

(b) if the party in default is a respondent -
for judgment or an order against him;

(c) for an order that the step in the
proceeding be taken within the time
limited in that order.

2. The Court may make an order of the kind mentioned
in sub-rule 1 or any other order or may give such
directions and specify such consequences for non
compliance with the order, as the Court thinks
just.

3. This rule does not limit the powers of the Court to
punish for contempt."

36. I have no hesitation in accepting the accuracy of the affidavit but with all respect, consider that it discloses a somewhat casual attitude to orders of this Court. It is in my opinion, except in unusual circumstances or cases of trivial delay, not good enough to wait until the time limited by an order of this Court for taking a step in the proceeding has expired before application is made for an extension of that time. Such an application does not necessarily involve an attendance at this Court. In cases where the extension sought is agreed O.35 r.10 makes provision for a written consent to be filed in the Registry and, subject to the overriding discretion of the judge, for an order to be made in accordance with the terms of the written consent.

37. The function of this Court in giving directions as to the time within which various steps shall be taken is not merely to set down a programme compliance with which is left in the hands of the parties.

38. It is an important feature of the Court's procedures that from the time at which an application is lodged, a date for a directions hearing is fixed and thereafter a degree of curial control and supervision over the progress of the proceedings is retained.

39. I adopt the observation contained in the report of Cranston and others published in 1985 under the auspices of the Australian Institute of Judicial Administration Inc on Delays and Efficiency in Civil Litigation in which it was said at para. 16.1:-

"The modern trend in judicial administration is towards
greater Court control as the way to reduce delay. The
key element is early and continuous judicial control of
cases so as to ensure compliance with the time limits
established by the Court. Although the Courts should be
prepared to reach reasonable accommodations with
lawyers, they should be wary about allowing lawyers to
breach the time limits established. In other words, the
Courts should create among lawyers the expectation that
events will occur when scheduled."

40. Although this may be said in some quarters to represent an erosion of the adversary principle in litigation, it represents in my opinion, a proper recognition of a public interest in the expeditious disposition of cases.

41. Turning now to the disposition of the motions for the dismissal of the application, it is clear that this is not a proper case for the imposition of such a draconian penalty.

42. There may be a case for the dismissal of an action under O.10 where the applicant's default has been intentional and contumelious or where there has been inordinate and inexcusable delay such that the respondent would be seriously prejudiced - Birkett v James (1978) AC 297, Allen v Sir Alfred McAlpine and Sons Limited (1968) 2 QB 229.

43. Under the Rules of the Supreme Court in England O.18 r.1 provides a time limit of 14 days within which the plaintiff must file his statement of claim after the defendant has given notice of intention to defend.

44. Where this time limit is not complied with O.19 r.1 provides for the defendant to apply to the Court for an order to dismiss the action:-

"And the Court may by order dismiss the action or make
such other order on such terms as it thinks just."

45. In Greek City Co. Limited v Demetriou (1983) 2 All ER 921 the plaintiffs in two actions for copyright infringement having issued their writs obtained certain undertakings in lieu of interlocutory injunctions from the defendants. However they failed to file statements of claim within time as required by O.18. The defendants applied to dismiss the actions.

46. It was held by Goulding J. that the failure to observe the time limit was not of itself to be treated as a default which was intentional and contumelious and an abuse of the Court process. It was also a factor of some importance, according to Goulding J., that where the limitation period for the plaintiff's action had not expired he could, notwithstanding dismissal of his action under O.19, institute fresh proceedings with attendant waste and additional cost to all concerned.

47. Such considerations are also relevant in the case of default motions under O.10 of the Federal Court Rules.

48. It may be that the case for dismissal can be more readily made out where there has been non-compliance with an order of the Court, than where there has been non-compliance with a rule.

49. This case as I have already said however, is not a case for dismissal. It is not a case of abuse of process nor of intentional and contumelious default. There is no evidence that the respondents have been prejudiced in any serious way by the delay arising from the applicant's failure to comply with the time limited for filing of the statement of claim.

50. I do not therefore accede to the respondent's motion in that regard but have decided to allow the applicant's motion for an extension of time within which to file a statement of claim. The timetable must otherwise be varied accordingly and orders which were made by me in that regard at the conclusion of argument are attached to these reasons.

51. The question remains whether I should accede to the second respondent's motion that the injunction be discharged as against it.

52. In the Greek City Co. case Goulding J. said at 928:-

"It is elementary in the High Court that a party who
seeks the equitable remedy of injunction before
questions of right and wrong have been tried between him
and the defendant has to exert diligence and promptness.
It happens every day that a plaintiff's application for
interlocutory relief is refused because he has not come
to the Court quickly enough. Logically it appears to me
that, if he is given relief until the trial of the
action, he is under a special obligation to get on with
the action speedily because the defendant is restrained,
it may be justly or it may be unjustly but that cannot
be known until trial. The plaintiff undertakes in
damages in the usual form but everyone who has practised
in these courts knows that these undertakings do not
always provide easy or adequate relief where the Court
at trial finds in the defendant's favour."

53. In this case the second respondent has been subject to the injunctions in question since 23 July 1986. That is for a period now of over six months. It is not sufficient in my opinion for the applicant to point to the fact that the second respondent took no steps to vary or discharge the injunction over particular periods of time.

54. It is as Goulding J. said, the applicant's special obligation in these circumstances to get on with the action speedily.

55. Nor is it any answer to the motion to discharge the injunction to say that the second respondent cannot complain about the existence of a restraint on unlawful action.

56. Whether all of the conduct encompassed by the terms of the injunction is unlawful is in my opinion, debatable.

57. The injunction exposes the second respondent to sanctions for non-compliance at a time when the rights and wrongs of the behaviour enjoined have not been determined.

58. In my opinion the continuance of such an order can usually only be justified where there is diligent prosecution of the proceedings on the part of the applicant.

59. In the circumstances I am of the view that the injunction should be discharged as against the second respondent and I so order. In doing so, it must however be made clear that it will be open to the applicant to apply for fresh interlocutory injunctive relief pending the hearing of the application should there be a recurrence of the conduct which grounded the grant of the injunction on 23 July.

60. I therefore accede to the second respondent's motion to discharge the injunction in its application to the second respondent but do otherwise dismiss the motions of the second and third respondents in so far as they seek the dismissal of the application as a whole. The costs of those motions will be the respondents in any event.

61. As to the applicant's motion for an extension of time within which to file a statement of claim, I allow that motion and vary the timetable in accordance with the attached orders. The applicant must also pay the respondents' costs of that motion. I would expect however that the costs would be taxed as one set.