Case: Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) [2007] FCA 489
Outcome: referred to
That the costs of this application be reserved." I will refer to these orders as "the December orders". 3 On 5 March 2007, the applicant issued a notice of motion wherein it sought the following orders: "1. There be judgment for the Applicant against the First Respondent, on that part of the Applicant's claim that the First Respondent has contravened s 51AD of Part IV of the Trade Practices Act 1974 . 2. There be judgment for the Applicant against the Second Respondent, and that part of the Applicant's claim that the Second Respondent has, pursuant to s 75B of the Trade Practices Act 1974 , been involved in a contravention of s 51AD of Part IVB of the Trade Practices Act 1974 . 3. The assessment of the amount of damages, or other relief, be deferred until further order. 4. An order that the Respondents pay the costs of this application. 5. Such further or other order or relief as may be required." 4 The notice of motion was supported by an affidavit of Mr Nicholas Stewart who is the managing director of the applicant. 5 The applicant's notice of motion came on for mention before me on 13 March 2007. I fixed 28 March 2007 as the date for the hearing of the notice of motion and I made a number of directions relating to the material to be relied upon on the hearing of the notice of motion and the filing of outlines of submissions. On 13 March 2007, the respondents asserted that the applicant was in breach of the December orders. 6 I heard submissions on the applicant's notice of motion on 28 March 2007 and I reserved my decision. Again on that occasion the respondents asserted that the applicant had not complied with the December orders. The applicant asserted that the respondents had not made proper discovery. 7 On 4 April 2007, I made the following orders: 1. The application by the applicant by notice of motion dated 5 March 2007 be dismissed. 2. The applicant pay the respondents' costs of the application by notice of motion dated 5 March 2007. I delivered reasons: Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) [2007] FCA 489 . 8 Again on that occasion the respondents asserted that the applicant had not complied with the December orders. I indicated to the parties that if either party complained of a failure to comply with orders of the Court, then an appropriate application should be made on notice. 9 On 3 May 2007, the respondents issued a notice of motion seeking the following orders: "1. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant; or in the alternative 2. That these proceedings be stayed or dismissed as to the whole of the relief claimed by the applicant, if the applicant does not serve on the respondents' solicitors a draft index for the proposed Court book within two days of the date of this order and further comply with the orders of the Honourable Justice Kenny dated 15 December 2006; and 3. That the applicant pay the respondents' costs of and incidental to this application assessed on the standard basis unless agreed between the respondents on the one part and the applicant on the other part; and 4. Any other orders that the Court may deem fit in the circumstances." 10 The respondents' notice of motion was supported by an affidavit from Ms Robyn Bartlett, who is a member of the firm of solicitors acting for the respondents. Ms Bartlett deposed to the fact that the applicant had not served on the respondents a draft index for the proposed Court book. The solicitor acting for the applicant swore an affidavit on 8 May 2007 and that affidavit was filed on the following day. The solicitor for the applicant deposed to the fact that the applicant asserted that the respondents had failed to discover any documents relating to the issue of the applicant's claim under the Franchising Code of Conduct and that such discovery was necessary before the applicant could prepare the Court book and Mr Stewart's witness statement.