Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572

Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572

The first respondent failed to discharge his onus to justify an extension of time under r 1.39. He knew from 18 August 2017 that failure to file and serve verified answers by 4.00pm on 15 September 2017 would strike out his defence, had twice previously defaulted in answering interrogatories, chose to be in New York without making arrangements to verify the answers there, gave no adequate explanation for that failure or for later delay, and acted inconsistently with the overarching purpose in ss 37M and 37N. The operation of the self-executing order did not create injustice warranting relief.

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Interlocutory Application Under R 1.39 of the Federal Court Rules 2011 for Extension of Time to Comply With a Self Executing Order / Application by the First Respondent After His Defence Had Been Struck Out for Non Compliance With Orders to File and Serve Verified Answers to Interrogatories
Outcome
The first respondent's interlocutory application was dismissed with costs.
Legal Topics
['extension of Time' 'self Executing Orders' 'interrogatories' 'strike Out of Defence' 'overarching Purpose Under Ss 37 M and 37 N of the Federal Court of Australia Act 1976 (cth)' 'case Management']
['practice and Procedure' 'federal Civil Procedure'] ['extension of Time' 'self Executing Orders' 'interrogatories' 'strike Out of Defence' 'overarching Purpose Under Ss 37 M and 37 N of the Federal Court of Australia Act 1976 (cth)' 'case Management']

Case Brief

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Procedural Posture

Interlocutory Application Under R 1.39 of the Federal Court Rules 2011 for Extension of Time to Comply With a Self Executing Order / Application by the First Respondent After His Defence Had Been Struck Out for Non Compliance With Orders to File and Serve Verified Answers to Interrogatories

Legal Issues

  1. 1 ['Whether the Court should exercise its discretion under r 1.39 of the Federal Court Rules 2011 to extend time after expiry for compliance with order 4 made on 7 September 2017.' 'Whether granting the extension would relieve the first respondent against injustice caused by the self-executing strike out order.' 'Whether the first respondent gave an adequate explanation for failing to file and serve verified answers to interrogatories by 4.00pm on 15 September 2017.' "Whether the first respondent's conduct was consistent with obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth)."]

Ratio Decidendi

The first respondent failed to discharge his onus to justify an extension of time under r 1.39. He knew from 18 August 2017 that failure to file and serve verified answers by 4.00pm on 15 September 2017 would strike out his defence, had twice previously defaulted in answering interrogatories, chose to be in New York without making arrangements to verify the answers there, gave no adequate explanation for that failure or for later delay, and acted inconsistently with the overarching purpose in ss 37M and 37N. The operation of the self-executing order did not create injustice warranting relief.

Court Disposition

The first respondent's interlocutory application was dismissed with costs.

Orders

  • ["The first respondent's interlocutory application filed in Court on 4 December 2017 be dismissed." "The first respondent pay the applicants' costs of the interlocutory application and to the extent appropriate in accordance with the undertaking given by the first respondent, by his counsel, on 4 December 2017 and...