Fitzwood Pty Ltd (ACN 005 180 163) v Unique Goal Pty Ltd (ACN 064 926 843) (in Liq) [2002] FCAFC 227 (4 July 2002)

Last Updated: 22 August 2002

FEDERAL COURT OF AUSTRALIA

Fitzwood Pty Ltd (ACN 005 180 163) v Unique Goal Pty Ltd (ACN  064 926 843) (in Liq) [2002] FCAFC 227

FITZWOOD PTY LTD (ACN 005 180 163) AND MAPEKA PTY LTD

(ACN 005 037 088) AND MAPWOOD PTY LTD (ACN 090 880 318)

v UNIQUE GOAL PTY LTD (ACN 064 926 843) (In Liquidation) AND BRIAROAKS PTY LTD (ACN 007 055 745) AND MICHAEL DRAPAC

VG 54 of 2002

LEE, DRUMMOND & KIEFEL JJ

4 JULY 2002

PERTH (VIA VIDEO LINK TO MELBOURNE AND BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG54 OF 2002

BETWEEN:	FITZWOOD PTY LTD (ACN 005 180 163) FIRST APPELLANT MAPEKA PTY LTD (ACN 005 037 088) SECOND APPELLANT MAPWOOD PTY LTD (ACN 090 880 318) THIRD APPELLANT
AND:	UNIQUE GOAL PTY LTD (ACN 064 926 843) (In Liquidation) FIRST RESPONDENT BRIAROAKS PTY LTD (ACN 007 055 745) SECOND RESPONDENT MICHAEL DRAPAC THIRD RESPONDENT
AND:	BRIAROAKS PTY LTD (ACN 007 055 745) FIRST CROSS-APPELLANT MICHAEL DRAPAC SECOND CROSS-APPELLANT
AND:	FITZWOOD PTY LTD (ACN 005 180 163) FIRST CROSS-RESPONDENT MAPEKA PTY LTD (ACN 005 037 088) SECOND CROSS-RESPONDENT MAPWOOD PTY LTD (ACN 090 880 318) THIRD CROSS-RESPONDENT CEMAK PTY LTD (ACN 060 432 902) FOURTH CROSS-RESPONDENT NEJAT MACKALI FIFTH CROSS-RESPONDENT UNIQUE GOAL PTY LTD (ACN 064 926 843) (In Liquidation) SIXTH CROSS-RESPONDENT
	PRICE BRENT (a firm) SEVENTH CROSS-RESPONDENT COLTMANS PRICE BRENT (a firm) EIGHTH CROSS-RESPONDENT MIDDLETONS MOORE & BEVINS (a firm) NINTH CROSS-RESPONDENT
JUDGES:	LEE, DRUMMOND & KIEFEL JJ
DATE OF ORDER:	4 JULY 2002
WHERE MADE:	PERTH (VIA VIDEO LINK TO MELBOURNE AND BRISBANE)

THE COURT ORDERS THAT:

The motion filed by the Second and Third Respondents and First and Second Cross-Appellants on 19 June 2002 be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG54 OF 2002

BETWEEN:	FITZWOOD PTY LTD (ACN 005 180 163) FIRST APPELLANT MAPEKA PTY LTD (ACN 005 037 088) SECOND APPELLANT MAPWOOD PTY LTD (ACN 090 880 318) THIRD APPELLANT
AND:	UNIQUE GOAL PTY LTD (ACN 064 926 843) (In Liquidation) FIRST RESPONDENT BRIAROAKS PTY LTD (ACN 007 055 745) SECOND RESPONDENT MICHAEL DRAPAC THIRD RESPONDENT
AND:	BRIAROAKS PTY LTD (ACN 007 055 745) FIRST CROSS-APPELLANT MICHAEL DRAPAC SECOND CROSS-APPELLANT
AND:	FITZWOOD PTY LTD (ACN 005 180 163) FIRST CROSS-RESPONDENT MAPEKA PTY LTD (ACN 005 037 088) SECOND CROSS-RESPONDENT MAPWOOD PTY LTD (ACN 090 880 318) THIRD CROSS-RESPONDENT CEMAK PTY LTD (ACN 060 432 902) FOURTH CROSS-RESPONDENT NEJAT MACKALI FIFTH CROSS-RESPONDENT UNIQUE GOAL PTY LTD (ACN 064 926 843) (In Liquidation) SIXTH CROSS-RESPONDENT
	PRICE BRENT (a firm) SEVENTH CROSS-RESPONDENT COLTMANS PRICE BRENT (a firm) EIGHTH CROSS-RESPONDENT MIDDLETONS MOORE & BEVINS (a firm) NINTH CROSS-RESPONDENT
JUDGES:	LEE, DRUMMOND & KIEFEL JJ
DATE:	4 JULY 2002
PLACE:	PERTH (VIA VIDEO LINK TO MELBOURNE AND BRISBANE)

REASONS FOR JUDGMENT

THE COURT:

1 This is a motion by the second and third respondents and first and second cross-appellants for an order that the dates set for the hearing of the appeal and cross-appeal in this matter be vacated.

2 After hearing submissions from the numerous parties to the appeal and cross-appeal we now provide short reasons for our decision that the motion should be dismissed.

3 The first point to make is that, in the interests of the due administration of justice, the conduct of business in this Court requires the most efficient use of court time to be striven for by all parties. After the usual callover proceeding conducted by the Court several months ago the matter was set down for hearing over four days in the appeal sittings of the Court to be held in Melbourne in August. Three Judges of the Court have set aside time to hear the appeal. At the callover hearing consideration was given to convenience of parties and their counsel as advised to the Court at the time of the callover.

4 Good cause must be shown before days allocated for the hearing of an appeal, perhaps at the expense of the hearing of another appeal, should be vacated. This must be particularly so where the party seeking to vacate the dates is the respondent to the appeal. There is an overriding public interest in the proper use of the court time and in there being finality in judicial process resolving the disputes of parties and determining their rights.

5 The material placed before the Court relates to matters personal to the third respondent, and those circumstances do not appear to involve exigencies that outweigh the usual considerations in such applications. The third respondent is not required to appear on the appeal. Counsel has been instructed and there is adequate time between now and the hearing of the appeal for the third respondent to continue to give instructions to counsel, notwithstanding any limitations in that regard that the third respondent may now be experiencing. Furthermore, all other parties - and there are a number of them - oppose the vacating of the trial dates.

6 Having duly considered the motion and its supporting material we are of the view that the considerations raised by the second and third respondents, do not suggest that the due administration of justice would be served if the dates for the hearing of the appeal were vacated. We are also satisfied that there is no real risk that any injustice or prejudice would be caused to the second and third respondents so as to make it inequitable for the appeal to be heard on the set dates. For these reasons the motion will be dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Drummond & Kiefel.

Associate:

Dated: 20 August 2002

Counsel for the Appellants, First, Second & Third Cross-Respondents:	D J Christie
Solicitors for the Appellants, First, Second & Third Cross-Respondents:	GSM Lawyers
Counsel for the Second, Third Respondents & Cross-Appellants:	B H Wyatt
Solicitors for the Second, Third Respondents & Cross-Appellants:	Rigby Cooke Lawyers
Counsel for the First Respondent and the Sixth Cross-Respondent:	B Goddard
Solicitors for the First Respondent and the Sixth Cross-Respondent:	Voitin Walker Davis
Counsel for the Seventh, Eighth, Ninth Cross-Respondents:	P Bourke
Solicitors for the Seventh, Eighth, Ninth Cross-Respondents:	Minter Ellison
Date of Hearing:	4 July 2002
Date of Judgment:	4 July 2002