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Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2010] FCA 4 (15 January 2010)

Last Updated: 18 January 2010

FEDERAL COURT OF AUSTRALIA


Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2010] FCA 4


Citation:
Smart Company Pty Ltd v Clipsal Australia Pty Ltd
[2010] FCA 4


Parties:
THE SMART COMPANY PTY LTD ACN 061 975 344 v CLIPSAL AUSTRALIA PTY LTD ACN 007 873 529, CLIPSAL INTEGRATED SYSTEMS PTY LTD ACN 089 444 931 and CLIPSAL TECHNOLOGIES AUSTRALIA PTY LTD ACN 089 444 931


File number:
WAD 132 of 2004


Judge:
LANDER J


Date of judgment:
15 January 2010


Catchwords:
PRACTICE AND PROCEDURE – respondents’ application for proceeding to be dismissed or permanently stayed – Federal Court Rules O 35A r 3 – whether applicant’s failure to comply with orders amounts to an order that the proceeding be dismissed or permanently stayed – proceeding has had a history of extensive delays – failure to comply with the orders not the fault of the applicant – an extension of time and possible vacation of current trial date and adjournment of proceeding would not occasion the respondents much prejudice


Legislation:
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 4 r 14, O 35A r 3, O 45 r 5


Cases cited:
Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 83 ALJR 951 distinguished
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 cited


Date of hearing:
21 and 23 December 2009


Place:
Adelaide


Division:
GENERAL DIVISION


Category:
Catchwords


Number of paragraphs:
73


Counsel for the Applicant:
Mr S McNamara


Solicitor for the Applicant:
Commercial & General Law


Counsel for the Respondents:
Mr S J Doyle with Mr B J Doyle


Solicitor for the Respondents:
Kelly & Co.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 132 of 2004

BETWEEN:
THE SMART COMPANY PTY LTD ACN 061 975 344
Applicant
AND:
CLIPSAL AUSTRALIA PTY LTD ACN 007 873 529
First Respondent

CLIPSAL INTEGRATED SYSTEMS PTY LTD
ACN 089 444 931
Second Respondent

CLIPSAL TECHNOLOGIES AUSTRALIA PTY LTD
ACN 089 444 931
Third Respondent

JUDGE:
LANDER J
DATE OF ORDER:
23 DECEMBER 2009
WHERE MADE:
ADELAIDE

THE COURT ORDERS THAT:


  1. The respondents’ application for an order:

(a) dismissing the applicant’s amended application as to the whole of the relief sought; or

(b) permanently staying that proceeding;

be dismissed.

  1. The time within which the applicant has to comply with paragraphs 2 and 8 of the orders made on 9 November 2009 be extended to 1 March 2010.
  2. There be no order as to costs of the respondents’ application or the applicant’s application.
  3. The parties have liberty to apply on 12 hours’ notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 132 of 2004

BETWEEN:
THE SMART COMPANY PTY LTD ACN 061 975 344
Applicant
AND:
CLIPSAL AUSTRALIA PTY LTD ACN 007 873 529
First Respondent

CLIPSAL INTEGRATED SYSTEMS PTY LTD
ACN 089 444 931
Second Respondent

CLIPSAL TECHNOLOGIES AUSTRALIA PTY LTD
ACN 089 444 931
Third Respondent

JUDGE:
LANDER J
DATE:
15 JANUARY 2010
PLACE:
ADELAIDE

REASONS FOR JUDGMENT

  1. This is the respondents’ application for orders in the following terms:
Pursuant to Order 35A, Rule 3(1)(a) of the Federal Court Rules, the Amended Application be either:

(a) dismissed; or, alternatively

(b) permanently stayed

as to the whole of the relief claimed by the applicant, with costs.

  1. The proceeding is set for hearing on 31 May 2010.
  2. The applicant developed technology whereby signals/data can be transmitted around a network from one device to another which can be used for building control and automation applications. It developed technology which comprised an electronic building control and automation system which has been referred to in the statement of claim as “the Smart system”.
  3. On 22 May 1995 the applicant and the first respondent entered into a Collaboration Agreement for the development of componentry to enable the direct connection of the Smart system to Clipsal’s C-Bus system. This was said to be a joint collaborative enterprise. The applicant claimed that the integration of the Smart system and the C-Bus system gave the C-Bus the “Smart Functionalities”.
  4. On 26 September 1996 the applicant and the first respondent, and another entity Home Systems Plus Pty Ltd, entered into a Heads of Agreement (HOA). In paragraph 56 of the statement of claim it is pleaded that the HOA provided for terms that the parties:
56.1 pool all information available to each of them relating to the Smart Products;

56.2 pool all information available to each of them for future modifications, developments or replacements of the Smart Products;

56.3 undertake a project for the redesign of the Smart Products at the earliest practicable date;

56.4 continue to introduce other designs, technologies and methods to reduce the manufacturing cost;

56.5 at all times implement measures to ensure Smart Products remain as the technological and market leader in the Specified Territories (as that term is defined in paragraph 3.1.16 of the HOA);

56.6 develop and commercialise any Smart Product co-operatively as part of the Joint Collaborative Enterprise;

  1. It was also pleaded that the applicant and the first respondent agreed not to develop or commercialise any Smart product or any building control and automation product with Smart Functionalities other than cooperatively as part of the joint collaborative enterprise.
  2. It is pleaded in paragraph 58:
58. By the HOA:

58.1 any building control and automation product developed with Smart Functionalities during the term of the HOA by Smart or Clipsal or both was properly to be regarded as having been developed on behalf of Smart;

58.2 Smart retained or acquired the intellectual property rights (as defined in clause 3.1.9 of the HOA) in respect of any product developed by Smart or Clipsal or both during the HOA which:

58.2.1 was a Smart Product listed in Schedule A hereto;

58.2.2 was a modification, development or replacement of a Smart Product listed in Schedule A;

58.2.3 was a Smart Product;

58.2.4 was a building control and automation product with Smart Functionalities; or

58.2.5 resulted from the Joint Collaborative Enterprise.

  1. The applicant has claimed in its statement of claim that the HOA permitted the first respondent to use the intellectual property owned by the applicant in respect of the original Smart system. It is also pleaded that pursuant to the joint collaborative enterprise the applicant and the first respondent developed improvements of and modifications to the Smart controller and system. As a result, it is pleaded registrable intellectual rights came into existence and were registered in respect of the improved products.
  2. In paragraph 78 of the statement of claim it is claimed that at various times during the term of the HOA without the consent or knowledge of the applicant, the first respondent developed or procured the development of:
78.1 products for building control and automation with Smart Functionalities;

78.2 products for building control and automation that when (and only when) combined with other products had (together with the products with which it was combined) Smart Functionalities; and

78.3 a combination of products (including products referred to at paragraph 60.5) sold as part of a system for building control and automation whereby each product within the system was endowed with Smart Functionalities;

(Unilateral Products).

  1. The unilateral products referred to in paragraph 78 are identified in paragraph 79 and, more particularly, identified in Schedule C of the statement of claim. The first respondent asserts that some 635 or 650 separate units are identified in Schedule C.
  2. On 22 December 2003 the first respondent came under the control of Schneider Electric SA, which was a competitor of the applicant and as a result, on 18 March 2004, the applicant terminated the HOA.
  3. The applicant claims that the first respondent was obliged to pay to the applicant licence fees at the rate set out in the HOA in respect of all sales and sub-licensing revenues received after termination in respect of the improved products and unilateral products.
  4. The applicant claims that the first respondent has breached the HOA by failing to pay the licence fees. It also complains that, by reason of the first respondent developing the unilateral products, the first respondent breached a fiduciary duty owed by it to the applicant. It claims that the second respondent knowingly assisted the first respondent in breach of that fiduciary duty. It further claims that the first respondent holds the intellectual property which has been developed on trust for the applicant. It claims that the first respondent has wrongfully applied for and obtained trademarks. It also claims that the first respondent contravened s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) by engaging in conduct which was misleading and deceptive. It complains that the second and third respondents were knowingly concerned in those contraventions. The applicant seeks damages which it identifies as (a) profits from its own manufacture and/or sale of Smart products; (b) licence fees from third parties for the manufacture and/or sale of Smart products; (c) profits from developing, expanding, manufacturing and selling Smart products. No particulars are given of the claimed damages.
  5. The respondents deny the breach of contract, the breach of fiduciary duty, the existence of the trust and any contravention of the Trade Practices Act.
  6. The proceeding has had an unfortunate history due mainly to the applicant’s inability to articulate its case with any precision or particularity; the applicant constantly changing solicitors; and the applicant’s failure to comply with directions in a timely fashion.
  7. The applicant commenced its proceeding in the Western Australian District Registry on 18 June 2004 by application accompanied by a statement of claim. The proceeding was issued by the applicant’s solicitors, Solomon Bros. On 10 August 2004, pursuant to leave given by Lee J on 9 July 2004, the applicant filed an amended application and an amended statement of claim. On 13 October 2004 the applicant, pursuant to leave given by Lee J on 20 August 2004, filed a further amended statement of claim.
  8. On 26 October 2004 the respondents filed a notice of motion seeking an order striking out particular paragraphs of the applicant’s further amended statement of claim. The respondents also sought an order for security for costs in the sum of $1,978,337. On 14 December 2004 Lee J ordered the applicant to file and serve a second further amended statement of claim with appropriate particulars by 14 January 2005. He made other orders relating to the filing of evidence and submissions on the respondents’ application for security for costs. On 7 January 2005 the applicant filed a second further amended statement of claim.
  9. On 4 May 2005 Lee J ordered the applicant to file and serve a third further amended statement of claim on or before 20 May 2005. He adjourned the applicant’s application for security for costs sine die.
  10. On 20 May 2005 the applicant filed its third further amended statement of claim. On 31 October 2005 the respondents filed their defence and cross-claim. On 23 January 2006 the respondents filed an amended defence and cross-claim.
  11. On 17 February 2006 the respondents applied to have the proceeding transferred from the Western Australian District Registry to the South Australian District Registry of the Court. On 23 February 2006 the applicant’s solicitors, Solomon Bros, ceased to act for the applicant after terminating its retainer with the applicant. On 27 February 2006 Gadens Lawyers of Perth commenced to act for the applicant in lieu of its previous solicitors, Solomon Bros.
  12. On 29 March 2006 Lee J ordered that the proceeding be transferred to the South Australian District Registry of the Court. The respondents’ application for security for costs was further adjourned. On 3 October 2006 I made orders by consent that the applicant procure the provision of security for the respondents’ costs in the amount of $850,000 and that if the amount of security required was not provided by 11 May 2007 the proceeding be stayed whilst the default continues.
  13. On 3 October 2006 Phillips Fox Lawyers were appointed to act as solicitors in the place of Gadens Lawyers. On 9 October 2006 their authority to act was terminated. On 10 October 2006 Cowell Clarke were appointed to act in the place of Phillips Fox Lawyers. On 1 February 2007 the applicant filed a reply to the respondents’ amended defence and a defence to the respondents’ cross-claim. On 26 April 2007 the respondents applied to strike out various paragraphs of the applicant’s reply and defence to cross-claim. They also applied for further and better particulars.
  14. On 26 March 2007 I made a number of orders directed to having the parties agree on the categories of documents for discovery and, in the event of disagreement, the further hearing of that matter.
  15. On 10 May 2007 the applicant filed a list of categories for discovery of documents by the applicant and the respondents identifying the categories which had been agreed and those which were not agreed.
  16. On 12 June 2007 the applicant filed a notice of motion seeking leave to amend the third further amended statement of claim. On 28 June 2007 the applicant produced the first version of that proposed further fourth further amended statement of claim. The content of that proposed pleading was debated before me on 12 July 2007. On that day I made an order directing the applicant to file and serve the applicant’s proposed fourth further amended statement of claim within 28 days and adjourned the hearing of the applicant’s notice of motion to 4 September 2007. On 16 August 2007 I granted the applicant an extension of time within which to file and serve the proposed further amended statement of claim to 27 August 2007. On 29 August 2007 the applicant provided a proposed fourth further amended statement of claim.
  17. On 20 September 2007 the application for leave to file the proposed fourth further amended statement of claim came on before me. After hearing the parties I dismissed the application. On 24 October 2007 the applicant filed its third version of the proposed fourth further amended statement of claim. Its application for leave to file and serve that document was heard by me on 7 November 2007 when I directed the applicant to file a fourth version of that document. On 13 November 2007 the applicant filed a fourth version of its proposed fourth further amended statement of claim. On 22 November 2007 the applicant filed a fifth version of that proposed fourth further amended statement of claim. On 27 November 2007 the matter came on before me again when I ordered the applicant to file a sixth version of the proposed fourth further amended statement of claim by 10 December 2007. On 18 February 2008 Cowell Clarke ceased to act and Clelands Lawyers assumed the role of the applicant’s solicitors.
  18. On 20 February 2008 I gave the applicant leave to file a fourth further amended statement of claim in accordance with the sixth version of that document which had been provided by the applicant with further particularity. The fourth further amended statement of claim was filed on 7 March 2008. On 3 July 2008 I made various orders for the costs payable by the applicant of its application to file its fourth further amended statement of claim. I refused to make an order that the costs be paid forthwith. On 5 September 2008 the respondents filed their amended defence and an amended cross-claim. On 16 September 2008 I ordered the applicant to file a reply and defence to that cross-claim by 12 November 2008.
  19. On 13 November 2008 I extended the time within which the applicant and the cross-respondent had to comply with my orders made on 16 September 2008 until 4 December 2008. On 4 December 2008 the applicant filed its reply and defence to cross-claim. The pleadings were thereby closed. The parties have not sought to amend their pleadings since that time.
  20. On 5 December 2008 I referred the proceeding to mediation and appointed The Hon John von Doussa QC as mediator, and adjourned the proceeding sine die. Mr von Doussa conducted a mediation on 17 March 2009 but it failed.
  21. The respondents sought to revive their application for security for costs upon which I had made the consent orders on 3 October 2006. The respondents claimed that the applicant’s inability to articulate its claim over the period since those orders were made and before filing its fourth further amended statement of claim meant that the applicant should provide further security for costs. On 1 April 2009 I gave further directions for the filing of evidence and submissions on that application.
  22. On 1 April 2009 I considered an application by the respondents that the applicant provide an expert report on liability prior to the parties making discovery. The respondents contended that the applicant’s expert report on liability should precede discovery because its terms would assist to inform the parties of the scope of discovery. They contended that the applicant’s pleading did not properly particularise its case. However, they said they wished to avoid any further pleading arguments but needed to have a better understanding of the applicant’s case. It seemed to me that all parties would need to understand the assumptions which the expert would make for the purpose of his or her opinion. I indicated the directions I intended to make and adjourned the hearing to allow the parties time to consider their position.
  23. On 8 April 2009 the hearing resumed. I was advised that junior counsel who had appeared for the applicant on a number of occasions and had appeared on 1 April 2009 was no longer retained “because in the opinion of the managing director of the Smart Company, Mr ... has not been adhering to the client’s instructions and his services are no longer required as a result of that”. The solicitor then appearing for the applicant sought an adjournment because senior counsel, Mr M Blue QC, was unavailable. I refused the application for the adjournment and made the following orders:
1. The applicant provide to the respondents within 28 days the following:

1.1 the assumptions which the applicant would ask any expert to make;

1.2 the documents which the applicant would and could provide that expert by reference to each of the products identified in paragraph 79.1 of the Fourth Further Amended Statement of Claim (FFASOC) and insofar as relevant, Schedule C thereof;

1.3 identification of each of the products which is said to have a Smart functionality by itself;

1.4 identification of each of the products which is said to have a Smart functionality only when used in combination with any product, and in that class identify whether, and if so which of those other products have a Smart functionality by themselves;

1.5 when a product is by itself or in combination with some other product said to have a Smart functionality, identification of the Smart functionality by reference to paragraphs 15 and 16 of the FFASOC;

1.6 the opinion which is sought for the purposes of the proceeding.

  1. The proceeding be adjourned for further consideration to Tuesday, 12 May 2009 at 9.00am.
  2. The notice of motion for security for costs previously listed on Wednesday, 27 May 2009 be relisted to Friday, 29 May 2009 at 9.00am.
  3. On 22 April 2009 Tindall Gask Bentley commenced to act for the applicant in place of Clelands Lawyers.
  4. On 12 May 2009 I extended the time within which the applicant provide the respondents with the assumptions upon which the applicant would ask any expert to make and the documents which the applicant would and could provide to that expert for a period of 14 days. The orders as extended were not complied with, but on 4 June 2009 the applicant provided a notice of assumption for its experts. On 23 June 2009 I heard the respondents’ application for further security for costs.
  5. On 3 August 2009 Tindall Gask Bentley filed a notice that it had ceased to act on behalf of the applicant and giving the address for service of the applicant/cross-respondent as: “The Smart Company Pty Ltd (ACN 061 975 344), Smarts House, 37 Shakespeare Avenue, Tranmere SA 5073”. The notice also provided a telephone contact number and a facsimile contact number for the applicant.
  6. On 17 September 2009 the respondents filed a notice of motion seeking an order that unless pursuant to O 4 r 14 and O 45 r 5 of the Federal Court Rules, the applicant files a notice of appointment of solicitor within seven days of the making of the order, the applicant’s amended application be dismissed as to the whole of the relief claimed by the applicant with costs. That application was set for hearing on 7 October 2009. On that day the matter was called on but no solicitors had been appointed to act for the applicant. A director of the applicant was in Court who had attended because he noticed when searching the internet that there was a hearing listed for that day. He told me that DLA Phillips Fox Lawyers had been retained to act on behalf of the applicant. I made orders directing the parties to file any evidence upon which they intended to rely for the purpose of the application.
  7. On 27 October 2009 Mr McNamara, a solicitor of Commercial & General Law, announced his appearance on behalf of the applicant. No notice had been filed by that firm that it was acting for the applicant. Mr McNamara said that he was appearing because DLA Phillips Fox Lawyers had advised the applicant that it could not act because of a conflict of interest and that he was considering whether to act on behalf of the applicant. He sought an adjournment of 14 days in order to allow him to consider his and the applicant’s position. The respondents advised that they were intending to amend their application in the notice of motion to seek further relief. I made an order that if the respondents sought to amend their notice of motion they provide a copy of that notice of motion to Mr McNamara, a director of the applicant, and the applicant at the applicant’s registered office. On 6 November 2009 Commercial & General Law filed a notice that they were acting for the applicant.
  8. On 9 November 2009 I dismissed the respondents’ application for further security for costs and ordered the respondents pay the applicant’s costs of that motion.
  9. On 9 November 2009 I made the following orders:
    1. The proceeding be set down for trial on all issues on 31 May 2010 with an estimated duration of 12 weeks.
    2. The applicant file and serve its expert evidence in relation to the assumptions provided to the respondents under cover of letter dated 4 June 2009 by Friday, 4 December 2009.
    3. The parties seek to agree a form of discovery protocol in accordance with the Federal Court Practice Note 17 by Friday, 4 December 2009.
    4. The parties exchange the categories of discovery each party requests from the other by Friday, 4 December 2009.
    5. Any dispute as to the categories of discovery, if not resolved, be heard on Monday, 14 December 2009 at 8.45am.
    6. The parties make discovery in accordance with those categories by Friday, 22 January 2010.
    7. The applicant file and serve a list of the witnesses to be called at trial and an outline of the evidence of each witness upon which the applicant proposes to rely at trial by Friday, 12 February 2010.
    8. The applicant file and serve any further expert evidence upon which it proposes to rely by Friday, 12 February 2010.
    9. The respondents file and serve any experts reports upon which they propose to rely by Friday, 26 March 2010.
    10. The respondents file and serve a list of witnesses to be called at trial and an outline of the evidence of each witness upon which they propose to rely by Friday, 26 March 2010.
    11. The applicant’s solicitors serve on the respondents’ solicitors a draft index for the proposed Court book including documents to be tendered by Friday, 9 April 2010.
    12. The parties’ solicitors consult as to the content of the Court book and agree a final form of the Court book by Friday, 16 April 2010.
    13. The applicant’s solicitors serve the respondents’ solicitors and file for the use of the Judge a paged and indexed Court book comprising the current pleadings and one copy of each of the proposed exhibits by 30 April 2010.
    14. The applicant pay the respondents’ costs of the notice of motion filed on 17 September 2009 as amended by the notice of motion filed on 4 November 2009.
  10. On 8 December 2009 Mr McNamara swore an affidavit in which he indicated that the applicant would seek the following orders:
24.1. To extend the time for filing and serving the Expert Report until the 1st March 2010;

24.2. Orders consequential to the extension of time to file and serve the Expert Report; and

24.3. for an order that the Respondent provide copies of the documents referred to in paragraph 18 hereof,

  1. That notice of motion was set for hearing on 14 December 2009. On 13 December 2009 the respondents’ solicitors provided to my Chambers and to the applicant’s solicitors a copy of orders which the respondents said they would seek on 14 December 2009. Those orders were:
    1. Pursuant to Order 35A, Rule 3(1)(a) of the Federal Court Rules, the Amended Application be either:
(a) dismissed; or, alternatively

(b) permanently stayed

as to the whole of the relief claimed by the applicant, with costs.

  1. In the alternative to paragraph 1 herein, the Amended Application be stayed subject to a right of the applicant to apply for leave to reinstate the proceeding, on the basis that:
(a) any application by the applicant for leave to reinstate the proceeding must be supported by affidavit evidence exhibiting the expert report of Mr John Seeger-Snowdon and deposing to the status of the applicant’s trial preparation and the applicant’s capacity and desire to undertake the necessary steps required in order to progress the matter to trial without causing significant prejudice to the respondents’ orderly preparation for trial;

(c)(sic) if, by 12 February 2009, the applicant has not obtained leave to reinstate the proceedings, the Amended Application shall stand dismissed, or, alternatively, permanently stayed.

3. Such further or other order as this Honourable Court may deem fit.

  1. The matter came on for hearing before me on 14 December 2009. I adjourned the hearing of the applicant’s application and the respondents’ application to Monday, 21 December 2009, and directed the parties to file any further evidence upon which they intended to rely at the hearing.
  2. The failure by the applicant to provide its expert report in accordance with the orders made by me on 9 November 2009 has precipitated both applications. I should address the evidence in relation to that matter.
  3. The applicant has filed an affidavit sworn by Mr McNamara, to which I have already referred and in which Mr McNamara has deposed to the applicants’ expert’s involvement in the proceeding.
  4. Mr John Seeger-Snowdon was retained in or about July 2009 to provide an expert report for the applicant based on a set of assumptions which had been agreed by the parties. Mr McNamara first had contact with Mr Seeger-Snowdon on 12 November 2009 when he telephoned him to advise him of the change of the date in the timetable for the provision of his expert report. Mr McNamara was advised by Mr Seeger-Snowdon at that time that he would not be able to provide a meaningful report by 4 December 2009 but may be able to complete such a report by the end of that month. He told Mr McNamara that the delay would be partly caused by the fact that the Melbourne University with which he is associated, would be closed down at that time for the Christmas break and it would be difficult for him to obtain administrative support services. Two days later, on 14 November 2009, Mr Seeger-Snowdon contacted Mr McNamara and advised him that he now intended to go to Europe on 25 November 2009 and would not return until the end of January 2010. Because of other court commitments which he had up until the time of his departure, it would not be possible for him to complete the report by 4 December 2009 or, in fact, by the end of 2009. He told Mr McNamara that even if he worked on the report whilst in Europe he could not complete it until 12 February 2010 and only then if he were provided with further documents, and had the opportunity to inspect installations of the applicant’s systems and the respondents’ systems.
  5. Mr McNamara was unable to contact Mr Seeger-Snowdon until 23 November 2009 when he provided Mr McNamara with a document which was in the form of an affidavit but not sworn before a person authorised to take oaths. He said in that affidavit:
    1. I have been working on the expert report as and when I have been able to since being retained in July of 2009. I have been provided with a large number of documents by the Plaintiff which I have been systematically going through and have requested further documents from the Plaintiff, some of which I believe are in the possession of the Defendants. For the expert report to be meaningful requires me to look at the product description and in some instances the electronic and design drawings for products and components of over 50 individual items. I also require in some instances to inspect the actual hardware and inspect installations of both the Plaintiff’s products and those installed by the Defendants.
    2. I am informed and verily believe to inspect some of the installation sites that I need to inspect for the purposes of the report I will need to travel to a number of different States of Australia, all of which will take time.
    3. I am presently working on other matters for other clients and on the 25th November 2009 I leave Australia for overseas and do not return until the 26th January 2010. Whilst I am overseas I can continue to work on the report but only at a limited level. Further during the months of December and January I am unable to access full office facilities and support. This will slow down the completion of the Report.
    4. Given the nature and extent of the report that I am required to deliver, knowing the resources that are available to me and knowing that I have to test and view items and look at those items from a systems perspective not only from the assumptions provided to me by the Plaintiff but also from the claims of the Defendants I realistically think I will not have a meaningful report available until the end of February 2010.
  6. It has to be observed that Mr Seeger-Snowdon does not say that he can provide his report by the end of February 2010 but that he “will not have a meaningful report available until the end of February 2010”. It would seem that over a course of a few days Mr Seeger-Snowdon’s estimation of when he could complete his report changed from the end of December to 12 February and then to not before the end of February 2010.
  7. In his affidavit Mr McNamara identified further documents Mr Seeger-Snowdon would require to complete his report. Mr McNamara also deposed to conversations and communications he had with Mr Blue who has been retained by the applicant as senior counsel for over two years. Mr Blue, apparently, was not aware until 25 November 2009 that the matter had been set down for hearing on 31 May 2010 and, if the matter is to commence on that date, would be unable to accept the brief because he will be overseas.
  8. The applicant also relied upon an affidavit of Dorothea Tomazos, who is a director of the applicant. She has deposed that she had been in contact with Mr Seeger-Snowdon from time to time since July 2009 but was not at any time prior to 14 November 2009 aware that Mr Seeger-Snowdon would be travelling overseas from 25 November 2009. She said she had been advised by Mr Seeger-Snowdon that he had been working on the expert’s report continuously but with other commitments since receiving the brief in July 2009. She says in paragraph 14 of her affidavit:
I seek leave to refer to Mr. McNamara’s affidavit dated 8th December 2009 filed in support of this application. Exhibited thereto and marked “SM1.” is Attachment G which is attached to the Assumptions. Attachment G is made up of Sheets 1 and 2 setting out all of the Systems and Products Mr Seeger-Snowdon needs to consider for the purposes of his Expert Report. I prepared that schedule together with a member of the Applicant’s technical team. There are over 200 different systems/products which Mr Seeger-Snowdon is required to analyse and comment which we were able to identify as products which may fit within the definition of Smart Products as per the Heads of Agreement (“HoA”). The documents which the expert is required to peruse comprise 16 lever arch files, some 6095 pages. In addition, various video material has been provided to the expert as well as various CD-Rom product guides called “Alfred”.

  1. She says that the applicant will be in a position to make discovery by 22 January 2010. Moreover, in order to ensure that an expert’s report is provided by 1 March 2010, the applicant would undertake to obtain a second expert’s report in addition to that of Mr Seeger-Snowdon. Insofar as counsel is concerned, whilst the applicant would benefit from Mr Blue’s availability, the applicant would brief other counsel in order that the matter may proceed on 31 May 2010.
  2. Paragraph 14 of Mrs Tomazos’ affidavit indicates the amount of reading an expert would need to do before giving an opinion. It must be doubtful whether an expert recently instructed could attend to that and report by 1 March 2010.
  3. The respondents have relied on affidavits of Mr Kennett, the principal in the respondents’ solicitor’s firm who has the responsibility for this proceeding, and Ms Thanissorn, the solicitor in that firm. Those affidavits exhibit correspondence between the parties in relation to the question of discovery.
  4. In her affidavit sworn on 16 December 2009 Ms Thanissorn exhibits further communications in relation to discovery which show the ongoing communication relating to the identification of categories. In a letter dated 16 December 2009 the applicant’s solicitor writes, “In my view the time spent in defining and refining categories is time wasted.”
  5. Having read the communications between the parties, I agree with that comment.
  6. The communications between the parties suggest that it will be necessary if the matter is to proceed on 31 May 2010 to have a further hearing in relation to the manner in which discovery is to be conducted.
  7. The respondents put their case for the orders which they seek on alternative bases. First, they say the applicant has been in default on a number of occasions and failed to comply with orders, and the failure by the applicant to comply with the order relating to the provision of an expert’s report is the final straw which would justify the dismissal of the whole of the proceeding. Alternatively, they say, having regard to the principles identified by the High Court in Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 83 ALJR 951, the proceeding ought to be dismissed because the applicant’s application for an extension of time within which to provide its expert report is tantamount to seeking an adjournment of the hearing of the proceeding which is fixed for 31 May 2010.
  8. The applicant’s conduct of the proceeding has not been entirely satisfactory. It has, for reasons unexplained, changed its solicitors on numerous occasions and changed its counsel. The failure to have continuity in the applicant’s legal representation has meant that the matter has been unnecessarily protracted. It has sought and obtained indulgences in relation to directions given from time to time because it has been unable to comply with those directions. It took about two years and six versions of the fourth further amended statement of claim before the applicant could articulate the case which it wished to present at trial.
  9. The applicant’s conduct has meant that the hearing of the proceeding has been delayed.
  10. Both parties, however, have made the mistake of arguing about issues and not seeking the resolution of those issues by the Court. The failure by the parties after 18 months to have agreed upon the categories of document which would inform the discovery to be given by the parties is inexcusable. The parties should have returned to the Court seeking the Court’s direction as to the categories of document that would inform the discovery.
  11. The applicant’s failure to have legal representation between 3 August 2009 and 6 November 2009 meant that the proceeding did not progress at all during that period, and for that the applicant is solely accountable. The applicant has not provided the reasons why Tindall Gask Bentley ceased to act for it and why it did not appoint other solicitors immediately to progress the proceeding.
  12. However, the immediate concern is the failure by the applicant to comply with the order to provide its expert’s report on liability by 4 December 2009. Mr S J Doyle, who led for the respondents, contended that this failure was “the final straw” and should lead to the dismissal of the applicant’s proceeding. He did not contend, if the extension of time which the applicant seeks were allowed, that the proceeding could not go to trial on 31 May 2010. He said that if the matter is to proceed to trial the respondents would wish it to proceed to trial as soon as possible and, if possible, on 31 May 2010. He did recognise however that it may not be possible if time were extended for the trial to take place. The respondents were in the unenviable position of on the one hand, wishing to contend that the failure to provide the expert’s report would mean that the trial date must be vacated but, on the other hand, recognising that if their application were unsuccessful, wishing to have the trial commence on that date.
  13. The applicant contended that if the extension of time were allowed there was sufficient time for the respondents to obtain their expert report and for the matter to proceed to trial.
  14. As I said during the hearing, I have very grave doubts that if the time within which the applicant has to provide its expert’s report is extended to 1 March 2010 that the trial could commence on 31 May 2010. If those reports, which would include a report on damages as well as the report on liability, were provided by the date sought, that would leave the respondents only three months in which to obtain their reports, assuming the reports should not be delivered earlier than the date upon which the trial is to start.
  15. However, if it be necessary to vacate the trial date and adjourn the proceeding, a new trial date can be set later in the year to suit the convenience of the parties. There should be no reason to need to adjourn the hearing for any longer than the three months by which time would be extended if the applicant’s application were successful. An adjournment for that length of time would be regrettable but would not occasion the respondents much prejudice.
  16. The applicant contended that I should extend the time within which the applicant has to comply with the orders for the delivery of experts’ reports because the present failure was not due to any fault of the applicant but was as a result of the applicant’s expert leaving the country on short notice. In a sense that is right. The evidence would suggest that the applicant retained Mr Seeger-Snowdon within a timely fashion and provided him with the documents upon which he would need to rely for the purpose of his report. However, whilst the applicant was unrepresented, the applicant did not seek any further information to assist Mr Seeger-Snowdon in his writing of his report. However, since Mr McNamara has been instructed, he has sought further information to assist Mr Seeger-Snowdon in completing his report. The applicant is not responsible for Mr Seeger-Snowdon’s late decision to go overseas.
  17. In Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, the defendant applied six months before trial to amend its defence to raise an additional defence. The primary judge refused the application relying in part upon principles of case management. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951, the defendant applied after the trial had commenced for leave to amend its defence to raise an additional defence. The application necessitated the adjournment of the proceeding. The defendant did not attempt to explain why it was that the defence had not been previously raised. The primary judge allowed the amendment relying upon the decision in Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146.
  18. As the High Court has explained in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 83 ALJR 951, to do so meant that the trial judge’s discretion had miscarried. The trial judge failed to have regard to relevant factors and had regard to irrelevant factors.
  19. This is not a case of the kind that confronted the trial judge in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 83 ALJR 951. The applicant in this case is not attempting to introduce a new case but attempting to prosecute an existing case. The applicant simply cannot comply with a direction given by the Court because the applicant’s expert has not remedied himself as he should have and prepared his expert’s report.
  20. There is nothing in the decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 83 ALJR 951 that would require me to refuse to extend the time within which the applicant’s expert has to provide his report, even if the effect of such an order would be to cause the trial to be adjourned.
  21. I am not prepared to make an order dismissing this proceeding upon the basis that the applicant has failed to provide its expert’s report within the time directed in my orders of 9 November 2009. The applicant has said from time to time that its case involves hundreds of millions of dollars. I have seen nothing to support that contention but, if that be the case, it would be a draconian result to dismiss the proceeding nearly six months before trial because the applicant had not provided an expert’s report by reason of the expert’s failure to provide that report.
  22. The respondents’ application to dismiss the proceeding must itself be dismissed.
  23. That leaves for consideration whether the extension of time to provide the report should be to 1 March 2010 or some other date. The applicant says that the report cannot be available before the end of February 2010. It would be pointless to appoint a date earlier than that date for the provision of the expert’s report. In those circumstances, I will make an order extending the time within which the applicant has to comply with paragraphs 2 and 8 of the orders made on 9 November 2009 to 1 March 2010.
  24. As I have said, I doubt whether this matter will be able to go to trial on 31 May 2010. During the hearing I indicated to the parties that I could attempt to make arrangements to start the matter in early October if the parties, and in particular the respondents, could not be ready for trial by 31 May 2010. There is a possibility that the Court could hear the matter earlier. I will hear the parties in relation to the hearing date, although I would indicate that I would be unlikely to vacate the hearing date at the instigation of the applicant.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:


Dated: 15 January 2010


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