FWR Enterprises Pty Limited v Hawkins [2005] FCA 579

FWR Enterprises Pty Limited v Hawkins [2005] FCA 579

The motion should not proceed on 6 May 2005 because the first and second respondents had not been given adequate time to respond to substantial affidavit material served only shortly before the hearing, no abridgment of time had been sought or granted before service, and no sufficient urgency justified depriving them of a reasonable opportunity to prepare. The appropriate course was to adjourn the notice of motion to the docket judge, grant limited leave for a notice to produce accounting documents, and order the applicant to pay the first and second respondents' costs of the day.

Jurisdiction
Australia
Judgment Date
09 May 2005
Procedural Posture
Interlocutory Notice of Motion in Federal Court Franchise Dispute / Application for Interlocutory Relief, Abridgment of Time, Adjournment, Leave to Serve Notice to Produce, and Procedural Directions
Outcome
Notice of motion adjourned; limited leave granted to serve a notice to produce; applicant ordered to pay the first and second respondents' costs of the day; affidavit timetable and restrictions on further notices to produce ordered.
Legal Topics
['interlocutory Relief' 'adjournment' 'abridgment of Time' 'notice to Produce' 'costs' 'docket System' 'franchise Area Dispute' 'entire Agreement Clause' 'parol Evidence Rule']
['civil Procedure' 'contract' 'franchising'] ['interlocutory Relief' 'adjournment' 'abridgment of Time' 'notice to Produce' 'costs' 'docket System' 'franchise Area Dispute' 'entire Agreement Clause' 'parol Evidence Rule']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion in Federal Court Franchise Dispute / Application for Interlocutory Relief, Abridgment of Time, Adjournment, Leave to Serve Notice to Produce, and Procedural Directions

Legal Issues

  1. 1 ["Whether time for service of the applicant's notice of motion and affidavit should be abridged nunc pro tunc so the motion could proceed on 6 May 2005." 'Whether the first and second respondents had been given adequate time to respond to the affidavit in support of the notice of motion.' 'Whether any aspects of the motion, including production of accounting records or audit relief, should proceed urgently rather than be adjourned.' 'Whether the applicant should have leave to serve a notice to produce documents relating to the accounting required by the order of 4 March 2005.' 'What costs and procedural directions should follow from the adjournment.']

Ratio Decidendi

The motion should not proceed on 6 May 2005 because the first and second respondents had not been given adequate time to respond to substantial affidavit material served only shortly before the hearing, no abridgment of time had been sought or granted before service, and no sufficient urgency justified depriving them of a reasonable opportunity to prepare. The appropriate course was to adjourn the notice of motion to the docket judge, grant limited leave for a notice to produce accounting documents, and order the applicant to pay the first and second respondents' costs of the day.

Court Disposition

Notice of motion adjourned; limited leave granted to serve a notice to produce; applicant ordered to pay the first and second respondents' costs of the day; affidavit timetable and restrictions on further notices to produce ordered.

Orders

  • ['Leave be granted to the applicant to serve a notice to produce no later than 4 pm on Monday, 9 May 2005 to be returnable on Friday, 13 May before a Registrar for the production to the Court of such documents as have been kept in relation to the accounting as dealt with by the order of 4 March, though the terms of...