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Federal Court of Australia |
Last Updated: 28 August 2008
FEDERAL COURT OF AUSTRALIA
National Institute for Truth Verification v Computer Voice Stress Analyser Pty Ltd (No 2) [2007] FCA 1549
NATIONAL
INSTITUTE FOR TRUTH VERIFICATION v COMPUTER VOICE STRESS ANALYSER PTY LTD (ACN
091 710 842), INTERNATIONAL TRUTH VERIFICATION
SYSTEMS PTY LTD (ACN 092 923
610), METRO SECURITY SERVICES PTY LTD (ACN 091 710 833), RYAN WORLDWIDE
PRODUCTIONS PTY LTD (ACN 103
762 796), SECUREFORCE INTERNATIONAL PTY LTD (ACN
009 266 675) AND JOHN WAYNE RYAN
WAD 231 OF 2005
FRENCH
J
20 SEPTEMBER 2007
PERTH
THE COURT ORDERS THAT:
1. The application is to stand dismissed on and from 13 October 2007 and the applicant to pay the respondents’ costs of the application unless the applicant, on or before 12 October 2007, provides security for the respondents’ costs of the proceedings as ordered on 15 May 2007.
2. The applicant is to file and serve an affidavit on or before 12 October
2007 explaining in detail its failure to comply with the
Court’s order of
15 May 2007.
3. The action is otherwise stayed until 12 October
2007.
4. The directions hearing is adjourned to 22 October 2007 at 9 am.
5. The applicant is to pay the respondents’ costs of the motion to be taxed or agreed and paid forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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BETWEEN:
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NATIONAL INSTITUTE FOR TRUTH VERIFICATION
Applicant |
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AND:
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COMPUTER VOICE STRESS ANALYSER PTY LTD
(ACN 091 710 842) First Respondent INTERNATIONAL TRUTH VERIFICATION SYSTEMS PTY LTD (ACN 092 923 610) Second Respondent METRO SECURITY SERVICES PTY LTD (ACN 091 710 833) Third Respondent RYAN WORLDWIDE PRODUCTIONS PTY LTD (ACN 103 762 796) Fourth Respondent SECUREFORCE INTERNATIONAL PTY LTD (ACN 009 266 675) Fifth Respondent JOHN WAYNE RYAN Sixth Respondent |
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JUDGE:
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FRENCH J
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DATE:
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20 SEPTEMBER 2007
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PLACE:
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PERTH
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REASONS FOR JUDGMENT ON MOTION TO DISMISS APPLICATION
1 It is no light matter to strike out an application summarily on the basis of non-compliance with an order of the Court. In this case an order was made on 15 May 2007 that the applicant do by 12 June 2007 provide security for the respondents’ costs of the proceedings in the sum of $80,000 by way of a bank guarantee to be lodged in a form acceptable to the Registrar or in such other form as might be agreed between the parties. The action was to be stayed on and from 13 June 2007 in the event that security was not provided as required by 12 June 2007. We are now at 20 September 2007 and the security for costs has still not been provided. The respondents move for dismissal of the action and alternatively for a springing order.
2 An affidavit of Mr Mallon, the respondents’ solicitor, refers to correspondence which has been exchanged with the applicant’s solicitors in relation to the delay. In a letter dated 20 July 2007, the applicant’s solicitors referred to difficulties encountered in obtaining the bank guarantee, including the internal requirements of St George Bank (St George), which is to provide the bank guarantee, in relation to USA banks from whom it is prepared to accept letters of credit as security for such guarantees. In that letter the applicant’s solicitor sought an adjournment of a directions hearing then scheduled for 30 days to enable the matters between the banks to be attended to. He enclosed a draft bank guarantee which would meet the requirements of the order.
3 Today on the return of the motion, the solicitors for the applicant have produced an email from St George to them, confirming that it has deemed a letter of credit from National City Bank, Cleveland acceptable as a security instrument by St George for the purpose of establishing a bank guarantee in favour of the applicant. St George has requested information to enable the completion of a submission. That is, an internal submission to establish the proposed facility on a formal basis. It is said that it could take up to two weeks to finalise the matter, given the overseas location of the applicant and St George’s requirement for original documents to be signed. It is said to be advisable to request a further week’s buffer for presentation of the bank guarantee to cover for unforeseen events.
4 Apparently there are some personal circumstances which may have affected the ability of the solicitor for the applicant to provide an affidavit explaining the delay. It is nevertheless a fairly marginal response to what is a serious lapse of time in the conduct of these proceedings which, as counsel for the respondents points out, have been on foot since 26 August 2005. We have now passed their second anniversary. I propose, however, rather than to dismiss the application summarily, given the apparent imminence of the security for costs, to accede to the proposal for a springing order. Given the delay that has occurred, I do not think even unforeseen events are going to prevent that springing order from coming into operation so this is the applicant’s last chance to make good on that order.
5 The orders that I propose to make, therefore, on the respondents’ motion, filed 7 September 2007, are as follows:
1. The application is to stand dismissed on and from 13 October 2007 and the applicant to pay the respondents’ costs of the application unless the applicant, on or before 12 October 2007, provides security for the respondents’ costs of the proceedings as ordered on 15 May 2007.
2. The applicant is to file and serve an affidavit on or before 12 October
2007 explaining in detail its failure to comply with the
Court’s order of
15 May 2007.
3. The action is otherwise stayed until 12 October
2007.
4. The directions hearing is adjourned to 22 October 2007 at 9 am.
5. The applicant is to pay the respondents’ costs of the motion to be
taxed or agreed and paid forthwith.
The last order will enable the costs
of the motion to be paid immediately out of the security once the security is
provided. Presumably
there is no money available at the present time but in any
event, that is a matter on which further application can be made if necessary.
Associate:
Dated: 8
October 2007
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Solicitor for the Applicant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1549.html