Andersen & Co v Southern Cross Airlines Holdings Ltd (in liq) [1996] QSC 92

' TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DOWSETT J No 1725 of 1995 ARTHUR ANDERSEN & co (a firm) and SOUTHERN CROSS AIRLINES HOLDINGS LIMITED (in liquidation) BRISBANE •• DATE 13/05/96 ORDER 1 I REVISED COPIES ISSUED l State Reporting Bureau IDate 1.2 I ,) / 1bi Applicant Respondent 4th Floor, 'fhe /,:,w Courts, George Stn·et, Brishmw, Q. 4000 Telephone: (07) 227 4360. facsimile: (07) 227 5532 -- 1 of 4 -- 130596 hcl (Dowsett J) HIS HONOUR: This is an application for cross vesting to the Federal Court. The matter has previously been before me and was adjourned. The reason for the adjournment was because these proceedings are at a very early stage and it was thought that it might be convenient if a draft statement of claim were prepared. qualified A draft has been prepared but it is clearly a very draft and not one to which the plaintiff is presently able to commit itself. Proceedings have been going on in the Federal Court for quite some time, but in September of last year, the plaintiff issued this writ. The circumstances appear from the recital of facts made by Mr McMurdo at the beginning of proceedings and which have been transcribed. I need not set them out again here. Although it is clear to me that there are a number of issues in this action which are closely associated with issues in the Federal Court, in the present state of gestation of the plaintiff's claim, I am not persuaded that the issues are so similar that the interests of justice dictate that the proceedings be transferred to the Federal Court, the plaintiff having chosen to commence them here. In particular, I am concerned that the plaintiff is not presently ready to litigate the proceedings which are presently in this Court and that even if they were transferred to the Federal Court, it is likely that they could not be litigated in conjunction with the proceedings which are already there simply because the plaintiff will not be ready. On the other hand, I think there is a real prospect that when 2 10 20 30 40 50 60 -- 2 of 4 -- 130596 hcl (Dowsett J) the plaintiff addresses the issues in the present litigation, it will find that many of the claims which it presently makes cannot be made out and that when such an informed approach is taken to the plaintiff's claim, there will be more points, or a greater proportion of points, in common between the Federal Court proceedings and these proceedings. It may then be clearer that cross vesting is in the interests of both parties. However, for the moment I am not satisfied that the interests of justice dictate cross vesting. The plaintiff has apparently chosen not to prosecute these proceedings because of a desire to spread the resources of the liquidation of the plaintiff in a way which enables the Federal Court proceedings to be prosecuted to an end, with the intention that if they are successful, the proceeds will be used to fund the present proceedings. Whilst I can understand that attitude, I think that it is important that these proceedings not stand still. The defendant is a professional firm, and it is unreasonable to expect that it should sit around waiting for the Federal Court proceedings (to which it is also a party) to be concluded and then litigate here in respect of matters which are at least associated in a general way with the Federal Court proceedings. I think that the best way to do justice in the present circumstances is to compel the plaintiff to get on with this action in the hope that before trial dates are assigned to the Federal Court, it will be more obvious that this matter should be cross vested or alternatively that it should not. 3 10 20 30 40 50 60 -- 3 of 4 -- 130596 hcl (Dowsett J) In those circumstances, I intend to direct the plaintiff to deliver a statement of claim within eight weeks of today, that is by on or before 15 July 1996. The plaintiff complains that it may need more time. However, having regard to the history of this action and the fact that in the course of the last six weeks, the plaintiff and its legal advisers have presumably been involved in giving serious consideration to the statement of claim in order to produce the draft which is now before me, I consider that eight weeks is more than a generous allowance of time in which to finalise the matter. Inherent in this, of course, is the assumption that the statement of claim put before me as a draft is a serious attempt at formulation of the plaintiff's claim and not merely a prop. HIS HONOUR: In the circumstances, I order deli very of the statement of claim on or before 15 July 1996. I order the defendant to deliver a defence on or before 19 August 1996. HIS HONOUR: be fixed. I adjourn the present applications to a date to 4 10 20 30 40 50 60 -- 4 of 4 --