FEDERAL COURT OF AUSTRALIA
Addenbrooke Pty Limited v Duncan (No 3) [2017] FCAFC 166
Appeal from: Addenbrooke Pty Limited v Duncan (No 6) [2015] FCA 793 File number: NSD 1001 of 2015 Judges: DOWSETT, GILMOUR AND WHITE JJ Date of judgment: 25 October 2017 Catchwords: APPEAL AND NEW TRIAL – Full Court previously ordered that particular claims be remitted for trial – request for clarification of the power exercised to order new trial – request declined.
APPEAL AND NEW TRIAL – application for orders that retrial be conducted on the papers and on the basis of the evidence adduced at the original trial – whether Full Court should circumscribe the scope and manner of conduct of the retrial, other than by confining the issues to be addressed – application refused.
COSTS – costs of the appeal – (By majority) – Appellant had substantial success on the appeal – no special or exceptional circumstance which would make an order for costs in favour of appellant inappropriate.
Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 12DA
Federal Court of Australia Act 1976 (Cth) ss 28(1), 30, 37M
Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW)
Cases cited: Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Miller v Miller (1978) 141 CLR 269
Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47; (2008) 246 ALR 113
Simonton v Australia Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129
Date of hearing: 16 August 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 53 Counsel for the Appellant: Mr J Stoljar SC and Ms R Gall Solicitor for the Appellant: Deutsch Miller Counsel for the First Respondent: Mr R Newlinds SC, Mr B Kremer and Mr G Ng Solicitor for the First Respondent: Yeldham Price O’Brien Lusk Counsel for the Second and Third Respondents: The Second and Third Respondents did not appear ORDERS
NSD 1001 of 2015 BETWEEN: ADDENBROOKE PTY LIMITED ACN 055 973 576
Appellant
AND: TRAVERS WILLIAM DUNCAN
First Respondent
PETER GRAY
Second Respondent
SOUTHERN CROSS EQUITIES PTY LTD ACN 071 935 441
Third Respondent
JUDGES:
DOWSETT, GILMOUR AND WHITE JJ
DATE OF ORDER:
THE COURT ORDERS THAT:
1.The First Respondent’s interlocutory application of 30 May 2017 is dismissed.
2.Order 4 made by the trial Judge on 5 August 2015 is set aside insofar as it concerns the costs of the First Respondent and in its place there be an order that the costs of the proceedings at first instance insofar as they concern the First Respondent abide the outcome of the retrial of the claims referred to in Orders 2 and 3 made on 16 May 2017.
3.The…
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- Case
- [2017] FCAFC 166
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the interpretation of the Full Court's power to order a retrial and whether the court should provide further clarification on the grounds for such an order. The court considered whether it should circumscribe the scope and manner of the retrial beyond confining the issues to be addressed. The court also examined whether it should allow the retrial to be conducted on the papers and on the basis of the evidence adduced at the original trial. The court concluded that providing further clarification on the grounds for the retrial would serve no practical purpose and that the court's reasons for the order were sufficient.
The court held that it should not elaborate further on its reasons for ordering the retrial. It noted that the court's reasons spoke for themselves and that any attempt to provide further clarification would not change the fact that the court had the power to order the retrial. The court also observed that even if it were to nominate a particular source of power, it would not preclude the order being justified by another available source of power. As such, there was no utility in providing the clarification sought. The court further declined to circumscribe the scope and manner of the retrial beyond confining the issues to be addressed. The court held that it should not direct the conduct of the retrial beyond specifying the issues to be addressed.
The court ordered that the respondent's interlocutory application be dismissed and that the costs of the appeal be awarded to the appellant. The court set aside the order concerning the costs of the respondent and ordered that the costs of the proceedings at first instance concerning the respondent would abide the outcome of the retrial. The court also ordered that the respondent pay the appellant's costs of and incidental to the appeal and the interlocutory application.
Orders
Orders of the court
1. The First Respondent’s interlocutory application of 30 May 2017 is dismissed.
2. Order 4 made by the trial Judge on 5 August 2015 is set aside insofar as it concerns the costs of the First Respondent and in its place there be an order that the costs of the proceedings at first instance insofar as they concern the First Respondent abide the outcome of the retrial of the claims referred to in Orders 2 and 3 made on 16 May 2017.
3. The First Respondent pay the Appellant’s costs of and incidental to its appeal concerning him.
4. The First Respondent pay the Appellant’s costs of and incidental to his interlocutory application of 30 May 2017 and of and incidental to the hearing on 16 August 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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