Addenbrooke Pty Limited v Duncan (No 3)

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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

Vata‑Meyer v The Commonwealth (No 2) [2015] FCAFC 167

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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Details
Case
[2017] FCAFC 166
Decision Date

CaseChat Overview and Summary

Addenbrooke Pty Limited v Duncan (No 3) involved an appeal against the Full Court's order for a retrial of particular claims. The appellant, Addenbrooke Pty Limited, sought clarification regarding the basis for the Full Court's order for a new trial. The respondent, Mr Duncan, requested that the Full Court provide clarification on the legal grounds and powers under which the retrial was ordered. This was to determine whether the order was made under section 28(1)(c) of the Federal Court of Australia Act, which allows for the remittal of proceedings for further hearing, or under section 28(1)(f), which provides for the granting of a new trial. The court declined to provide the requested clarification, noting that it would not alter the fact that the court had the power to order the retrial under either provision.

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

Mr Duncan sought clarification of the power exercised by the Full Court when ordering the new trial. He referred to the powers vested expressly or implicitly in the Court by s 28(1)(c), s 28(1)(f) and s 30 of the FCA Act which provide (relevantly):28 Form of judgment on appeal(1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:…(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;…(f)grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; ……30 New trials(1)In an appeal in which the Court grants a new trial, the Court may impose such conditions on a party, and may direct such admissions to be made by a party, for the purpose of the new trial as are just.(2) Where the Court grants a new trial in a suit, the Court:(a)may grant it, either generally or on particular issues only, as it thinks just; and(b)may order that testimony of a witness examined at the former trial may be used in the new trial in the manner provided in the order. Mr Duncan’s request for clarification seems to have had its genesis in the words used in Order 3 that the identified claims “be remitted for trial” before another Judge, whereas s 28(1)(c) uses the word remit without the word trial, and s 28(1)(f) uses the term “new trial” but not the word “remit”. He also noted that, if the Order was made pursuant to s 28(1)(c), then the Court was empowered to make the remittal “subject to such directions as [it] thinks fit” whereas if the order for the retrial was made pursuant to s 28(1)(f), the Court was empowered by s 30 to impose “such conditions on a party” as are just and, further, had the power vested by s 30(2). In our opinion, the Court should, for a number of reasons, decline to provide the “clarification” sought. First, the Court’s reasons speak for themselves. The Court should not be asked now to elaborate on its reasons. Secondly, either the Court had the power to order that the identified claims be remitted to trial before another Judge, or it did not. What the Court may now say on this question will not alter that circumstance. Thirdly, even if the Court was to nominate a particular source of power, it would not preclude the order being justified by another available source of power. Accordingly, there is no apparent utility in providing the clarification sought. Fourthly, it was not suggested that the Court should provide the clarification sought as a necessary integer of determining the application of Mr Duncan in relation to the manner in which the retrial should be conducted. Nor did counsel for Mr Duncan suggest that the provision of the clarification would make a practical difference. On the contrary, counsel appeared to acknowledge that it would not when he said:Now, it may be this is all a bit of a distinction without a difference because, either way, the Court has the power to make directions itself as to how the new trial … proceeds.

Ratio Decidendi

Legal Principle Established

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