FEDERAL COURT OF AUSTRALIA

Jadwan Pty Ltd v Rae & Partners (A Firm) [2017] FCA 443

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 14.01 of the Federal Court Rules 2011 (Cth), and/or s 196C Evidence Act 2001 (Tas) the Fourth Respondent, by her legal representatives, may inspect the buildings located at 20 Fitzroy Place, Sandy Bay in the State of Tasmania, formerly known as Derwent Court Nursing Home (the Property), including taking photographs of same.

2.    The Applicant, Mr Dennis Boyd Gresham and Mrs Shirley Margaret Gresham shall do all things necessary to facilitate the inspection of the Property by the legal representatives of the Fourth Respondent.

3.    The inspection of the Property by the legal representatives of the Fourth Respondent is to take place on a date and at a time nominated by the Fourth Respondent upon no less than 48 hours' notice in writing to the Applicant, Dennis Boyd Gresham and Shirley Margaret Gresham, and no later than 20 May 2017.

4.    The Applicant pay the Fourth Respondent's costs of and incidental to this application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JUSTICE KERR:

1    On 7 April 2017 the Fourth Respondent sought interlocutory orders to permit her by her legal representatives to inspect certain premises that were formerly known as the Derwent Court Nursing Home (the Property).

2    The Property is owned by the Applicant and had previously been operated as a nursing home by it. The Property no longer operates as a nursing home and is currently leased to Mr Dennis Gresham and Mrs Shirley Gresham (the tenants).

3    The Applicant claims substantial damages for professional negligence and breach of contract from the Respondents based on the loss of its nursing home business. Proceedings to vindicate those claims were originally filed in the Supreme Court of Tasmania some 20 years ago. They have been transferred to the Federal Court of Australia. The trial has been set down for 20 days commencing on 3 July 2017.

4    It is essential that case preparation for that trial be expeditiously completed.

5    It is not in dispute that inspection of the Property will be necessary and appropriate to permit the Fourth Respondent’s counsel and solicitors to comprehend and understand the expert evidence in the trial.

6    The Fourth Respondent accordingly has sought orders that the Applicant and the tenants do all things necessary to facilitate an inspection to take place at a date and time nominated by the Fourth Respondent upon no less than 48 hours’ notice in writing.

7    The interlocutory application included an endorsement that it was intended to be served on each of the tenants.

8    On 19 April 2017 the Applicant filed an affidavit in which Mr Burt, a partner of McKean Park as solicitors acting for the Applicant, deposed to his belief that the Applicant did not oppose orders for the Respondent’s representatives to have access to the Property for the purposes of the proceeding at a reasonable time (at [7(b)]).

9    However, notwithstanding Mr Burt’s affidavit of the previous day, when the matter came before me on 20 April 2017 Mr Pearce, counsel for the Applicant, opposed the proposed orders on the grounds that the Court should accept counsel’s undertaking on behalf of the Applicant that:

The entire matter can be resolved, in my submission, by the court accepting the undertaking that my client has offered. It disposes of the entire matter.

If the court accepts the undertaking we will do what we have done in the past, which is use our best endeavours to secure access. Nothing more can be expected of my client, which has no right of possession of the property. (Transcript, p 13)

and that the interlocutory process served on the leaseholders had not named them in the title to the proceedings:

Only the applicant that is Jadwan is named as the respondent to this application. The orders sought certainly, in paragraph 2, seek orders against the tenants who are not named as respondents to the application – and the probably explains why they’re not before the court today. If they took this application to their solicitor – a component solicitor, the solicitor would tell them, “Well, you’re not named as respondents to the application. You’re not required to attend before court. (Transcript, p 13)

10    I noted that prior leave to serve the interlocutory application on persons not then parties (the tenants) had not been sought as required by r 17.03. Because I would have granted leave, had it been sought, and as no prejudice appeared to me to arise by reason of the Court treating the application as having been validly issued and served, I gave leave nunc pro tunc.

11    I then heard submissions on the objections, to my granting the orders sought, raised by Mr Pearce.

12    Counsel for the Fourth Respondent, Mr Gunson SC, drew the Court to the fact that Mr Gresham had been served and a copy of the affidavit of service was on file and there was an affidavit on file deposing to the fact that he had previously expressed no objection.

13    Having heard the parties’ respective submissions I indicated that upon the Fourth Respondent filing an affidavit of service for Mrs Gresham and evidence deposing to the fact that Mrs Gresham had been made aware of the proceedings and had indicated that she would assist in facilitating an inspection if the orders sought were made, I would make orders in Chambers in the terms sought by Mr Gunson, but with the date for compliance extended to take into account any consequent delay.

14    Further affidavits having been filed, these are my short reasons for making orders as foreshadowed.

15    The undertaking offered by Mr Pearce was explained by him to the Court in terms of the Applicant undertaking to do what it had previously done in the past in good faith to facilitate inspection of the subject property. However as the evidence before the Court establishes that when arrangements for an inspection had previously been put in place with the supposed cooperation of the Applicant, the Applicant had only given notice to the tenants the night before and since 2 March 2017 the Fourth Respondent’s further correspondence on the subject had been unanswered (affidavit of Mr Ellis at [11]-[29]). I was sceptical of what might be the value of such an undertaking.

16    It is true that an explanation for that subsequent correspondence not being attended to was provided by the Applicant shortly before the hearing of this application (its solicitors being unprepared to act further until being put in funds) but given that history I was not satisfied that it would be inappropriate to make orders in the terms sought.

17    Neither do I accept that it is a fatal flaw that the tenants were not named in the title to the interlocutory application.

18    Rule 17.03 permits a party to apply to the Court for an order that an interlocutory application be served on a person who is not a party. As referred to above I granted leave to the Applicant to serve her application pursuant to that rule nunc pro tunc.

19    The interlocutory application I granted leave for her to serve included the statement that it was intended to be served on each of the tenants. It set out the orders the Fourth Respondent was seeking. It gave any person upon whom it was served notice of the time and place where the interlocutory application would be heard.

20    I did not make the orders sought on 20 April 2017 at the conclusion of the hearing only because I regarded it as not available to me to rely on statements from the bar table by Mr Gunson as to service upon Mrs Gresham and her expressed views. However, it was not factually in dispute that she had been served and was prepared to assist in facilitating any such inspection (see Mr Burt’s affidavit filed on the Applicant’s behalf, [7(a)]).

21    The Fourth Respondent lodged affidavits deposing to the fact that Mrs Gresham was served with the application on 13 April 2017 at 2.35pm. Evidence before the Court also establishes that Mrs Gresham was orally informed of the date and time of the hearing. Neither she nor Mr Gresham have opposed the orders sought. Neither appeared at the hearing nor contacted the Court. Mr Ellis’ affidavits establish that he separately advised each of the tenants of the orders the Fourth Respondent would be seeking and each had told him that they had no objection and would comply with any orders made.

22    Therefore, if I am wrong on the requirements of the rules such that the Fourth Respondent’s interlocutory application should have named each of the tenants in the title to the proceeding and not merely stated an intention to serve it upon each of them, I would in any event dispense with compliance of any such requirement given it is clear that each of the tenants were served, they had the nature of the application explained to them, knew when it was to be heard, they have not expressed any objection to the Court making the orders sought, and have stated that they will comply with any orders made by the Court.

23    Being satisfied of the additional matters I required to be evidenced by affidavit I therefore make the following orders:

1.    Pursuant to r 14.01 of the Federal Court Rules 2011 (Cth), and/or s 196C Evidence Act 2001 (Tas) the Fourth Respondent, by her legal representatives, may inspect the buildings located at 20 Fitzroy Place, Sandy Bay in the State of Tasmania, formerly known as Derwent Court Nursing Home (the Property), including taking photographs of same.

2.    The Applicant, Mr Dennis Boyd Gresham and Mrs Shirley Margaret Gresham shall do all things necessary to facilitate the inspection of the Property by the legal representatives of the Fourth Respondent.

3.    The inspection of the Property by the legal representatives of the Fourth Respondent is to take place on a date and at a time nominated by the Fourth Respondent upon no less than 48 hours' notice in writing to the Applicant, Dennis Boyd Gresham and Shirley Margaret Gresham, and no later than 20 May 2017.

4.    The Applicant pay the Fourth Respondent's costs of and incidental to this application.

Associate:     

Dated:    28 April 2017

SCHEDULE OF PARTIES