Australian Securities & Investments Commission v Exotic Timbers of Australia Ltd [2003] FCA 703

Procedural Posture

Federal Court Proceeding by the Australian Securities and Investments Commission Against Respondents Concerning Investment Schemes and Timber Growing Activities / Interlocutory Application by the Second Respondent for Adjournment of Trial Shortly Before a Five Day Trial

Legal Issues

1. 1 ['Whether the trial should be adjourned because the second respondent said he was not ready to proceed.' "Whether the proceedings should proceed against the first and second respondents despite the second respondent's lack of preparation." 'Whether the proceedings against the third respondent should be adjourned because of questions concerning her capacity to give instructions.']

Ratio Decidendi

The second respondent had not explained his failure to prepare for trial or identified any defence despite knowing since mid-March that the matter was to be heard the following week. Although an adjournment might otherwise have been considered, the interests of investors, the worsening position of the company and investment schemes under receivership, and the close factual connection between the claims against the first and second respondents required the trial to proceed against them. The third respondent's position was different because serious questions surrounded her capacity to give instructions, so the proceedings against her were adjourned.

Court Disposition

The adjournment sought by the second respondent was refused as to the trial against the first and second respondents; proceedings against the third respondent were adjourned; the second respondent was ordered to pay the applicant's costs of the two-day hearing.

Orders

• ['The trial will proceed as against the first and second respondents.' 'The proceedings as against the third respondent will be adjourned to a date to be fixed.' "The second respondent pay the applicant's costs of today and yesterday."]