Sita Qld Pty Ltd v Queensland [2000] FCA 469 (7 April 2000)

Last Updated: 2 May 2000

FEDERAL COURT OF AUSTRALIA

Sita Qld Pty Ltd v State of Queensland [2000] FCA 469

SITA QLD PTY LTD and HARLINGDALE PTY LTD v STATE OF QUEENSLAND, THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND, THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND), SURFSIDE BUSLINES PTY LTD and RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE

QG 95 OF 1998

DOWSETT J

7 APRIL 2000

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1998

BETWEEN:	SITA QLD PTY LTD FIRST APPLICANT HARLINGDALE PTY LTD SECOND APPLICANT
AND:	STATE OF QUEENSLAND FIRST RESPONDENT THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND THIRD RESPONDENT THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND) FOURTH RESPONDENT SURFSIDE BUSLINES PTY LTD FIFTH RESPONDENT RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE SIXTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	7 APRIL 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be refused.

2. The applicants pay the respondents' costs of the proceedings today.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1998

BETWEEN:	SITA QLD PTY LTD FIRST APPLICANT HARLINGDALE PTY LTD SECOND APPLICANT
AND:	STATE OF QUEENSLAND FIRST RESPONDENT THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND THIRD RESPONDENT THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND) FOURTH RESPONDENT SURFSIDE BUSLINES PTY LTD FIFTH RESPONDENT RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE SIXTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	7 APRIL 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 These proceedings were commenced by application filed on 21 August 1998. An initial statement of claim was delivered with that application. An amended statement of claim was subsequently delivered. A further amended statement of claim was delivered on 16 November 1998. An application was made to strike out substantial parts of the further amended statement of claim and on 15 June 1999, various aspects of the Statement of Claim were struck out. A further further amended statement of claim was delivered on or about 7 December 1999.

2 The applicants' claim, as presently constituted, appears to fall into three broad parts, although there are numerous different causes of action in some of the parts. The first part relates to a conversation between a principal of the applicants, Mr Sita, and the Minister for Transport at the time, which allegedly occurred on 20 December 1997 and pursuant to which, as it is alleged, it was agreed that the State Government would provide financial assistance to the applicants in the conduct of a bus service between Brisbane and the Gold Coast. The second cluster of causes of action relates to the legality or otherwise of various determinations made pursuant to the Transport Operations (Passenger Transport) Act 1994 (Qld) and Regulations made thereunder. It is alleged that numerous steps taken by Ministers of the Crown and/or Government officers were not taken in good faith and for a proper purpose. All such decisions appear to have occurred towards the end of 1994, save for one which occurred in 1997. It seems to have been an attempt to rectify any shortcomings in the earlier decisions. The third group of causes of action relates primarily to dealings with the fifth and sixth respondents and involves causes of action in contract, relying upon estoppel and under the Trade Practices Act 1974 (Cth).

3 The matter was set down for trial for five weeks in September of 1999. However, on 22 June, as a result of my decision on the strike out application, those trial dates were vacated. On 24 September 1999, the matter was set down for trial over three weeks commencing on 13 June 2000. Today, the applicants seek to have those trial dates vacated. The principal reason or justification for that application is to be found in the affidavit of Peter John Holloway filed on 6 April, and that of Sonia Kilkenny filed by leave today. Mr Holloway says that his firm took over this matter from another firm of solicitors in February of this year and received the relevant files later in that month. Subsequently, a conference was arranged with counsel in Melbourne, being counsel who had previously been consulted about the matter by the previous solicitors. At about that time, the current solicitors commenced a review of the documentation and realised that the action was to be heard in June of this year. At some stage they formed the view that it was unlikely that the matter could be ready for trial, given their view of it and the state in which it was received from the previous solicitors. The respondents indicated that they were not interested in any proposed adjournment.

4 It seems that there are outstanding problems with discovery, but there is no reason to believe that they are of such magnitude as to lead to the conclusion that the trial cannot commence on the appointed day. It seems, also, that the applicants are considering further amendments to the Statement of Claim. It is impossible to predict what consequences they may have, but from what has been said today, they are unlikely to be dramatic. It seems unlikely that they will derail the trial process.

5 I suspect that, as a result of things said in the course of this morning, a further affidavit, that of Miss Kilkenny, was filed after lunch. It identifies in rather more detail the reasons for the view that the matter is not ready for trial. It also discloses that the applicants' decision to change his solicitors was provoked by advice from the previous solicitors concerning, and/or their conduct of other proceedings in which they were involved.

6 In justification of their view that the matter is not ready for trial, the present solicitors, in par 7 of Miss Kilkenny's affidavit, say:

(a) that there are no proofs of evidence from lay or expert witnesses;

(b) that discovery has not been given, nor have documents been inspected;

(c) that there has been no advice on evidence; and

(d) that there has been no brief to counsel for the conduct of the trial, that is, no such brief has been prepared.

7 Whilst those observations suggest that the matter is not in good shape, the trial is still some nine or ten weeks away. One would have thought that with substantial effort, it ought not be impossible to get it ready. I don't like to second-guess solicitors when they form views as to these things, but it is not possible for me simply to accept at face value such assertions. This is particularly so in the present case where the respondents oppose any adjournment. In the case of the fifth and sixth respondents, their reasons for doing so are not unpersuasive in that they say that their business interests are likely to be significantly affected by any further adjournments. That is not to say that I consider the reasons advanced by the first respondent for opposing the adjournment to be immaterial. They relate primarily to the administration of legislation concerning bus services throughout the state. I have no doubt that the existence of this litigation is causing some difficulty in that regard. However that is not something which I would generally consider to be of overwhelming importance where the rights of one particular operator are in jeopardy.

8 I should say that in the course of the hearing, I indicated to counsel that it might be possible for me to delay the trial until July because other commitments would facilitate the swapping of the trial dates assigned to this trial with those assigned to another matter. However that was not acceptable to the fifth and sixth respondents for the reasons to which I have referred. It was initially thought also that counsel for the first respondent might not be available, although I now understand that he is available. In any event, counsel for the applicants are presently unable to say that they could be ready for trial at that time, and my capacity to switch the assignment of those dates depends very much upon an almost immediate response.

9 Thus it can be seen that there are considerations of a quite weighty kind militating against the application for adjournment. Further, it must be kept in mind that the matter has previously been adjourned on one occasion. It is a lengthy trial, and if it is adjourned again, there will be inevitable delay in finding appropriate trial dates.

10 The slight degree of scepticism which I have demonstrated in connection with the concerns expressed by the solicitors for the applicants is, to some extent, dependent upon my view that although the case is by no means a simple one, it has been substantially narrowed down by the earlier application to strike out aspects of the pleading. I do not accept that it is now necessarily of a magnitude which would make it impossible to prepare in the weeks remaining until the scheduled trial dates.

11 In the end, however, the primary reasons for refusing the application, as I propose to do, are twofold: first is the particular interests of all respondents in bringing the matter to trial and the fact that it has previously been adjourned; second, and most important, is the fact that in the material filed on behalf of the applicants, no attempt has been made to explain why the case is not presently able to be got ready for trial. It is said, simply, that when the material was received from the previous solicitors, it was in a particular state. Whilst I accept that, no explanation is offered as to why that was so. I am tacitly invited to draw the inference that it is attributable to the neglect of the previous solicitors, but given that the applicants have not expressly addressed this question, I do not see why I should so conclude. It is at least equally likely that the present situation has been brought about either by failure to give appropriate instructions or by failure to provide appropriate funding. The point is that there has been no attempt to explain why the case has not been prepared for trial to the point where such preparation can be completed before the scheduled commencement date in June. In those circumstances, I consider that the application should be refused. I order the applicants to pay the respondents' costs of the proceedings today.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 2 May 2000

Counsel for the Applicants:	Mr T G Santamaria QC Mr M Cowrick
Solicitor for the Applicants:	Freehill Hollingdale & Page
Counsel for the First, Third and Fourth Respondents:	Mr R Hanson QC Mr P Flanagan
Solicitor for the First, Third and Fourth Respondents:	Crown Law
Counsel for the Fifth Respondent:	Mr B O'Donnell QC
Solicitor for the Fifth Respondent:	Hill Thomson & Sullivan
Counsel for the Sixth Respondent:	Mr J W Lee
Solicitor for the Sixth Respondent:	Goodfellow & Scott
Date of Hearing:	7 April 2000
Date of Judgment:	7 April 2000