FEDERAL COURT OF AUSTRALIA

Watson v AWB Limited (No 6) [2009] FCA 1381

JOHN WATSON AND KAYE WATSON IN THEIR OWN RIGHT AND AS REPRESENTATIVES OF THE GROUP MEMBERS v AWB LIMITED (ACN 081 890 459)

NSD 2020 of 2007

FOSTER J

20 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The hearing due to commence on 30 November 2009 be vacated.

2.                  The proceeding be listed for hearing from 8 February 2010 to 15 March 2010 inclusive. 

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.

REASONS FOR JUDGMENT

1                     Mr Scerri QC, who has been retained by the respondent in this matter for a considerable time in relation to these proceedings and other proceedings involving issues which are in common with these proceedings, has had a very unfortunate accident.  The position is that he is unable to appear at the hearing due to commence on 30 November next and, according to the medical advice which he has received, will be unable to do so this year. 

2                     I have explored with Counsel for both parties the possibility of having the case opened and then dealing with as much as the evidence as could reasonably be dealt with without causing prejudice to the respondent of a kind which could not be remedied. 

3                     Senior Counsel for the applicants submitted that the hearing should commence on 30 November 2009 and should encompass his opening plus the evidence of the event study experts.  Those experts are seen by the parties as very important and, perhaps, critical witnesses in the case.  He submitted that competent Senior Counsel could master the relevant material in the time available.  He also submitted that, were I to be of a different view, his clients would prefer to put off the commencement of the hearing until next year.  He saw no real advantage in merely proceeding with his clients’ opening this year.

4                     The simple fact is that we are a week away from the start of the case and it is entirely unrealistic to expect that the respondent will be able to retain Senior Counsel of sufficient experience to take Mr Scerri’s place, let alone in sufficient time to enable such a replacement Counsel to master the material so as fairly to represent the respondent’s interests. 

5                     For this reason, I am compelled to vacate the hearing due to commence on 30 November next, and to adjourn the commencement of that hearing until next year.  I do so very reluctantly.  However, the interests of justice inevitably lead to that decision because the risk of visiting very substantial injustice on the respondent far outweighs the obvious desirability of having the case heard as presently programmed. 

6                     In the circumstances, having looked at possibilities of using the time usefully, it seems to me that the best thing to do is to commence the trial next year on the day which was fixed for the commencement of the second tranche, which is 8 February 2010.  The reality is that, as Mr Sheahan quite properly points out to me, there is not much point allowing the applicants to open the case and then to adjourn, leaving the parties to come back to a cold opening next year. 

7                     For these reasons I propose to vacate the hearing due to commence on 30 November next and to commence the hearing on 8 February 2010.  I will add to the days allotted already for that hearing the whole of the weeks commencing 22 February 2010, 1 March 2010 and 8 March 2010.  I will also sit on 15 March 2010, if necessary, but will be unable to sit for the balance of that week because of other pre-existing commitments.  

Associate:

Dated:         24 November 2009