FEDERAL COURT OF AUSTRALIA

Essential Beauty Franchising Pty Ltd v Essential Beauty (Qld) Pty Ltd (No 2)

[2012] FCA 440

THE COURT ORDERS THAT:

1.    The application be refused.

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

REASONS FOR RULING

1    The Court has given directions from time to time for the hearing of this matter, including the exchange of witness statements, books of documents, expert evidence and the like. The matter is listed to commence hearing on 13 to 15 June 2012 in Adelaide and then from 25 to 29 June 2012 in Brisbane, that reflecting the location of the respective parties and the convenience of the witnesses and the most efficient and economic way of proceeding with the hearing.

2    Counsel for the applicants has now applied for the hearing date to be varied, having regard to the difficulties of complying with the timetable fixed for the exchange of witness statements and having regard to the fact that the sole director of the primary applicant will be away overseas from 26 June to 16 July 2012. I have been told of the proposed timetable for the provision of the remainder of the applicants’ evidence. It is not in accordance with the timetable which has been fixed and extended from time to time. Counsel for the respondents has indicated that, if that proposed timetable is adhered to, the respondents anticipate that to a very large extent their material will be filed more or less within the timeframe as previously fixed.

3    In those circumstances, I do not consider that the delay in the applicants filing their witness statements itself provides a reason to vacate any of the hearing dates. If that leads to the applicants getting the respondents’ witness statements somewhat belatedly, that is a detriment which, in the overall interests of justice, must be borne. It is not likely, in my view, to produce any significant injustice, particularly having regard to the sequence of the hearing.

4    The absence overseas of the sole director of the principal applicant, Mr Maello, is a more significant matter. Had I known about it at the time the hearing dates were first fixed, it may well be that the hearing dates would have been different. However, the Court is now faced with the difficult option of proceeding in his absence, but after his full instructions have been given in relation to the witness statements of the respondents on the one hand, or vacating the second week of the hearing to a time which, in effect, is November of this year due to the other commitments of the Court and of counsel for the respondents. In my view, the interests of justice do not dictate such a long delay.

5    The reason for that long delay is that following Mr Maello’s return from his holiday, counsel for the respondents is not available. He is committed in a very substantial matter which will occupy most of the last quarter of this year in Brisbane and, understandably, requires the one week for preparation of that hearing that the Court might otherwise have had available in August 2012 for hearing the second tranche of evidence in this matter. I have been assured by counsel for the respondents today that that is the circumstance, and I accept that assurance. My rough knowledge of the matter in which counsel is involved and which is said to require that preparation time indicates or confirms that it is a very substantial matter.

6    On balance, in my view, the interests of justice are best served by proceeding with the hearing dates as they are presently fixed. The alternative would be to substantially delay the trial and revisit whether the undertakings and injunctions previously given, at least from 2 August 2011, should continue and to address other matters of preparation afresh. It is a matter for Mr Maello whether in those circumstances he chooses to interrupt his holiday or delegate to someone else such responsibility as is necessary for the further conduct of the matter while he is away. I do not know from the material before me whether that will produce any significant detriment to the applicants, having regard to the instructions which have been given to date to the very lengthy statement which he will provide, or to the nature and extent of his business, including the management assistance which may be available to the solicitors for the second week of the hearing. There is no clear evidence that Mr Maello, and only Mr Maello, is capable of giving such further instructions as may be necessary to respond to any unanticipated topics of evidence or to respond to matters of detail in evidence from the respondents.

7    Accordingly, the application at present is refused.

Associate:

Dated:    27 April 2012