Janus, W.C.C.M. & Ors v A.G.C. (Advances) Ltd & Anor [1988] FCA 217

Janus, W.C.C.M. & Ors v A.G.C. (Advances) Ltd & Anor [1988] FCA 217

Although applicants failed to take necessary steps to comply with the order for affidavits and did not act with reasonable diligence, and despite considering striking out the proceedings, the court determined to allow the proceedings to continue, but imposed a much shorter further period for compliance as a consequence of the applicants' delay.

Parties
First Applicant: Walter Corneille Clement Marie Janus; Second Applicant: Winjan Pastoral Company Pty Ltd; Third Applicant: Tweed Canal Estates Pty Ltd; Fourth Applicant: Wingara Enterprises Pty Ltd; First Respondent: A.G.C. (Advances) Limited; Second Respondent: Macdonald Wagner Pty Ltd; Cross Claimant: A.G.C. (Advances) Limited; First Cross Respondent: Walter Corneille Clement Marie Janus; Second Cross Respondent: Winjan Pastoral Company Pty Ltd; Third Cross Respondent: Tweed Canal Estates Pty Ltd; Fourth Cross Respondent: Wingara Enterprises Pty Ltd; Fifth Cross Respondent: Angela Janus
Jurisdiction
Australia
Judgment Date
10 May 1988
Procedural Posture
Applications to Dismiss Proceedings or for Directions / Ruling on Interlocutory Applications (directions/default)
Outcome
Proceedings not dismissed; timetable for affidavits strictly reset; costs orders made against applicants.
Legal Topics
Dismissal for Non Compliance With Procedural Orders, Affidavit Timetable, Costs Orders, Discovery
Civil Procedure Dismissal for Non Compliance With Procedural Orders Affidavit Timetable Costs Orders Discovery

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Parties

Walter Corneille Clement Marie Janus

First Applicant

Winjan Pastoral Company Pty Ltd

Second Applicant

Tweed Canal Estates Pty Ltd

Third Applicant

Wingara Enterprises Pty Ltd

Fourth Applicant

A.G.C. (Advances) Limited

First Respondent

Macdonald Wagner Pty Ltd

Second Respondent

A.G.C. (Advances) Limited

Cross Claimant

Walter Corneille Clement Marie Janus

First Cross Respondent

Winjan Pastoral Company Pty Ltd

Second Cross Respondent

Tweed Canal Estates Pty Ltd

Third Cross Respondent

Wingara Enterprises Pty Ltd

Fourth Cross Respondent

Angela Janus

Fifth Cross Respondent

Procedural Posture

Applications to Dismiss Proceedings or for Directions / Ruling on Interlocutory Applications (directions/default)

Legal Issues

  1. 1 whether proceedings should be dismissed under O.10 r.7 for failure to comply with court directions regarding affidavit evidence
  2. 2 whether further time should be allowed for applicants to file affidavits

Ratio Decidendi

Although applicants failed to take necessary steps to comply with the order for affidavits and did not act with reasonable diligence, and despite considering striking out the proceedings, the court determined to allow the proceedings to continue, but imposed a much shorter further period for compliance as a consequence of the applicants' delay.

Court Disposition

Proceedings not dismissed; timetable for affidavits strictly reset; costs orders made against applicants.

Orders

  • Affidavits on behalf of the applicants to be filed and served on or before 31 May 1988 and not later.
  • No affidavit on behalf of the applicants to be received after 31 May 1988.