FEDERAL COURT OF AUSTRALIA

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 7) [2010] FCA 1512

THE COURT ORDERS THAT:

1.    As to the time previously fixed for the filing of witness statements (including any experts’ reports) by the respondents, that the time is extended to 28 February 2011.

2.    As to the time in respect of witness statements (including any experts’ reports) in reply, if any, by the applicants, that time is extended to 13 May 2011.

3.    Subject to securing the permission of the Chief Justice in that regard, the trial of this matter is to commence on 1 August 2011 with four weeks (commencing on that date) be set aside for that purpose.

4.    There be liberty to apply.

5.    The matter be adjourned for directions at 9:00am on 3 February 2011 with permission granted for the respondents to appear by video-link on that day.

6.    The costs of today’s hearing be reserved.

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    At the time when the trial was fixed to commence in October last year, there was a contingency that in lieu of the trial being completed in the fortnight allocated in October that evidence might have to be taken on commission in Dubai. For reasons that are detailed at an evidentiary level in exhibit FAT, that particular contingency did not come to pass. Further, for reasons likewise evidenced in that same exhibit, it became apparent that, if there were to be any evidence taken in Dubai, that that would not occur at all this year. For reasons I have given in an earlier interlocutory judgment, I determine that the interests of justice dictated that there not be a part-heard trial, but rather that the trial be adjourned. The combined impact of all of that has been that directions that were made previously in respect of the giving of statements and times by which that should occur have been overtaken by events.

2    Even before those events occurred, the respondents, in accordance with earlier directions, ought to have filed some statements. I can well see, though, why that has not occurred.

3    A position in which I find myself at the moment is that the earliest possible date upon which I could offer a trial, which is now estimated by counsel, and it seems to me to be a realistic estimate, to be of four-weeks duration, is August. Even then, that would require special permission from the Chief Justice to allow that to occur in that month.

4    There are strong reasons why the interests of justice dictate that this case be given as early as possible a trial date. Given events that are occurring in the courts in the United Arab Emirates, which particularly involve Mr Joyce but also another witness, and for that matter also involve the Sunland parties in that it is possible under the law of the Emirates to have what might be termed a reparation proceeding (a proceeding determined at least initially in conjunction with a criminal proceeding in that place). Knowing as I do then that August is the earliest upon which I could hear this case and knowing as well that for good reason the courts have a period of recess over the summer, with which the profession aligns its own holiday plans, it seems to me there is no reason why I ought to compel Mr Joyce or the other respondent parties to provide statements forthwith, which is, in effect, the desire of the Sunland parties.

5    There was debate before me about the extent to which, were the respondents to give their statements. Mr Brown’s evidence (which is apparently yet to be heard in proceedings in Dubai) might be coloured or tailored by that. That, of course, is a factor to take into account but it is not one of great moment in the sense that that concern is more one for the courts of Dubai, whereas so far as this proceeding is concerned, and as the Sunland parties have submitted, Mr Brown has already committed himself in terms of his evidence-in-chief, in the statements that have been filed.

6    It is important I think, in this case, to treat the obligations that have previously been ordered in respect of filing statements by the respondents as obligations which were made under a quite different prevailing situation.

7    It is said, “Well, Mr Joyce and the other respondents have had much time already to look at the Sunland parties’ statements, and they might reasonably be expected to be in a very advanced state of preparation in respect of providing their own statements”. I accept that particular proposition but I also tell myself in so doing “but I cannot give a trial date until August at the earliest”. I then have to ask that if I grant (as I am inclined to do) an extension of time, will that prejudice the Sunland parties in terms of their having sufficient time, not just to provide affidavits in reply if they be so advised, but also to conduct other necessary pre-trial preparations? The answer to that flows again from “but I cannot get a trial date until August”.

8    In my opinion, if I allow further time to the respondent parties there is quite sufficient time given my knowledge of the pleadings in this case and the evidence which is already filed, to allow the Sunland parties, not only to have opportunity to make affidavits in reply if so disposed, but also to conduct necessary and proper pre-trial preparation.

9    Taking those considerations into account, and in respect of times previously fixed for the filing of statements, the orders I make are:

1.    As to times previously fixed for the filing of affidavits by the respondents I extend those times.

2.    Those times are extended to 28 February 2011.

3.    As to times in respect of affidavits in reply, if any, by the applicants, that time is extended to Friday 13 May.

4.    There be liberty to apply.

5.    Adjourn the matter for directions on 3 February 2011 at 9.00am and grant permission for the respondents to appear by video link that day.

Associate:

Dated:    18 July 2011