Johnson Tiles Pty Ltd v Esso Australia Limited [2001] FCA 64 (2 February 2001)

Last Updated: 12 February 2001

FEDERAL COURT OF AUSTRALIA

Johnson Tiles Pty Ltd v Esso Australia Limited [2001] FCA 64

COURTS - practice and procedure - whether trial date should be vacated by reason of overlapping criminal trial

McMahon v Gould (1983) 7 ACLR 202 - cited

Australian Securities Commission v Kavanagh (1994) 13 ACSR 573 - cited

R v Institute of Chartered Accountants in England and Wales, ex parte Brindle (1994) BCC 297 - cited

JOHNSON TILES PTY LTD v ESSO AUSTRALIA LIMITED

VG 519 OF 1998 AND VG 524 OF 1998

JUDGE: MERKEL J

DATE: 2 FEBRUARY 2001

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 519 OF 1998 VG 524 OF 1998

BETWEEN:	JOHNSON TILES PTY LTD AND OTHERS APPLICANTS ESSO AUSTRALIA LTD AND ANOTHER RESPONDENTS/CROSS-CLAIMANTS
AND:	STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS CROSS RESPONDENTS/CROSS-CLAIMANTS BHP PETROLEUM (BASS STRAIT) PTY LTD CROSS-RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	2 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the trial date of 2 April 2001 be vacated.

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	VG 519 OF 1998 VG 524 OF 1998

BETWEEN:	JOHNSON TILES PTY LTD AND OTHERS APPLICANTS ESSO AUSTRALIA LTD AND ANOTHER RESPONDENTS/CROSS-CLAIMANTS
AND:	STATE ELECTRICITY COMMISSION OF VICTORIA AND OTHERS CROSS-RESPONDENTS/CROSS-CLAIMANTS BHP PETROLEUM (BASS STRAIT) PTY LTD CROSS-RESPONDENT
JUDGE:	MERKEL J
DATE:	2 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The respondents ("Esso") have applied for the trial date of the civil proceeding in this Court, which is fixed for 2 April 2001, to be vacated. The basis of Esso's application is that the civil trial will overlap with Esso's criminal trial in the Supreme Court. Both trials involve the role of Esso in relation to the accident and explosion that occurred at its Longford plant on 25 September 1998.

2 Three grounds of unfairness and prejudice are said to flow from the overlap. First, under current trial directions some Crown witnesses at the criminal trial, whom the applicants propose to call as their witnesses, will have to be given access to statements of Esso's witnesses to which they would not otherwise have been entitled. Second, Esso has engaged counsel and solicitors and also has involved a number of its employees in the task of investigating the accident and explosion. It is said that having those persons involved in two proceedings at the same time would be oppressive and prejudicial. Third, Esso claims that long absences of a number of Esso employees who would be required to be engaged in legal proceedings if both trials were run concurrently could give rise to production problems for Esso at the Longford plant.

3 Esso relies upon several authorities to contend that, where there are overlapping or potentially overlapping civil and criminal proceedings, the appropriate course is to vacate the hearing date of the civil proceedings: see McMahon v Gould (1983) 7 ACLR 202 at 206, Australian Securities Commission v Kavanagh (1994) 13 ACSR 573 at 580 to 582, and R v Institute of Chartered Accountants in England and Wales, ex parte Brindle (1994) BCC 297 at 310, 311 and 317.

4 I deal firstly with the problem of overlapping witnesses. The criminal trial, which is due to commence in the Supreme Court early in February 2001 is likely to continue for at least 2 months. I accept that in those circumstances there is force in Esso's contention that it ought not to be prejudiced in the conduct of its defence of the Supreme Court proceedings by the concurrent proceedings in this Court.

5 Although, there is undoubtedly a substantial public interest involved in the civil claims in this Court proceeding to trial as early as possible, there is also a public interest in ensuring that Esso's trial in the Supreme Court is not prejudiced by a concurrent trial in this Court. The potential prejudice to Esso of evidence being made available to Crown witnesses can be resolved at this stage by ensuring that any witness statements of Esso's witnesses that may touch upon or concern matters arising in the criminal trial not be made available to any of the applicants' witnesses who may be called as a Crown witness in the criminal trial. Accordingly, it is appropriate to extend the current confidentiality orders made in respect of Esso's witness statements that fall into that category until further order. The delay in providing access to those statements to the applicants' witnesses will delay the applicants' preparation for trial and therefore the commencement of the civil trial.

6 The second ground of prejudice relied upon by Esso relates essentially to the problem of requiring the same people to be in two places at the one time. Once again, as a result of the present proximity of, and the likely overlap between, the two trials I accept that the conduct in this Court of the civil proceeding at the same time as the criminal proceeding can be oppressive or unfair to Esso's counsel, solicitors or witnesses who are involved in both proceedings.

7 The conclusions which I have reached make it unnecessary for me to consider the third ground which is more problematic.

8 For the above reasons I have concluded that it is appropriate to vacate the current hearing date at this stage. The unfairness and oppression of which Esso complains can be reviewed when the course and likely extent of the criminal trial become clear.

9 I propose to grant Esso's motion to vacate the trial date of the civil proceeding but will reserve liberty to any party to apply in respect of the refixing of a trial date. In that regard the parties are on notice that I would expect that the trial date will be refixed when more is known about the likely completion date of the criminal trial.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 2 February 2001

Counsel for the applicants:	Mr JWK Burnside QC with Mr H Borenstein and Ms RM Doyle
Solicitors for the applicants:	Slater and Gordon, Maurice Blackburn Cashman, Phillips Fox and Lander and Rogers
Counsel for the Respondents:	Mr JE Middleton QC and Mr DMB Derham QC with Mr PJ Booth and Mr GP Harris
Solicitor for the Respondents:	Middletons Moore & Bevins
Counsel for the State Entities:	Mr GAA Nettle QC and Mr JBR Beach QC with Mr SM Anderson
Solicitor for the State Entities:	Freehills
Counsel for the State Entities on the issue of public interest immunity:	Mr MA Robins
Solicitor for the State Entities on the issue of public interest immunity:	Victorian Government Solicitor
Counsel for the 21st, 22nd and 23rd Cross-Respondents:	Ms M Sloss
Solicitor for the 21st, 22nd and 23rd Cross-Respondents:	Arthur Robinson and Hedderwicks
Counsel for the 15th and 24th respondents:	Mr JC Santamaria QC with Mr CM Caleo
Solicitor for the 15th and 24th respondents:	Corrs Chambers Westgarth
Counsel for the 25th to 27th Cross-Respondents:	Mr CJ Connor
Solicitor for the 25th to 27th Cross-Respondents:	Baker and McKenzie
Counsel for the State Entity Insurers:	Mr A Probert
Solicitor for the State Entity Insurers:	Ebsworth and Ebsworth
Counsel for BHP Petroleum (Bass Strait) Pty Ltd:	Mr PD Crutchfield
Solicitor for BHP Petroleum (Bass Strait) Pty Ltd:	Mallesons Stephen Jaques
Date of Hearing:	2 February 2001
Date of Judgment:	2 February 2001