Australian Mutual Provident Society v John Cavalerie Pty Ltd

[1995] FCA 849

IN THE FEDERAL COURT OF AUSTRALIA )No. QG 170 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  AUSTRALIAN MUTUAL PROVIDENT SOCIETY

A.R.B.N. 008 387 371

First Applicant

AND:     AMP GENERAL INSURANCE LIMITED
                  A.C.N. 008 405 632

Second Applicant

AND:JOHN CAVALERIE PTY. LTD.

A.C.N. 010 851 000

First Respondent

AND:JOHN CAVALERIE

Second Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              20 October, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The application for interlocutory relief be dismissed.

1. Liberty to apply.

1. The costs of today be reserved.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 170 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  AUSTRALIAN MUTUAL PROVIDENT SOCIETY

A.R.B.N. 008 387 371

First Applicant

AND:     AMP GENERAL INSURANCE LIMITED
                  A.C.N. 008 405 632

Second Applicant

AND:JOHN CAVALERIE PTY. LTD.

A.C.N. 010 851 000

First Respondent

AND:JOHN CAVALERIE

Second Respondent

Coram:    Drummond J
Date:     20 October, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

This is an application for an Anton Piller order brought ex parte by the applicants, which as long ago as 21 September, 1995 terminated their agency agreement with the respondents.  The applicants contend that they have a strong case that they have been wronged by the respondents in respect of the respondents acting, while they were agents of the applicants, in a way that ensured they obtained commissions on new policies in circumstances in which they must have been well aware they were not entitled, given the nature of their
contractual arrangements with the applicants, to those new commissions.

The material before me, however, is, in my view, not sufficient to justify the grant of such a draconic remedy as an Anton Piller order which, for practical purposes, gives an applicant in litigation a very powerful tactical advantage.  The termination of the agreement took place on 21 September, 1995 with notice being given on 25 September, 1995.  The position which the material reveals the respondents have adopted is that the documentary information, which is of so much concern to the applicants and in respect of which the Anton Piller order is sought, has been acknowledged by the respondents as held by them.  They, however, assert a right to hold it.  It is thus not a case in which there is evidence suggesting that information is held by a respondent which he denies having.  It will be difficult for the respondents to explain in a convincing way non-production of this material when that is required in the course of the litigation now on foot.

This causes me concern as to whether there is a sufficient foundation for an assertion that there is a real risk of destruction of evidence, if the interlocutory order is not made.  Another feature of the case which gives me concern on that same point is the chronology of events.  The termination took place at the date I have mentioned.  By letter of 6 October, 1995 the applicants put the respondents on notice that they would require delivery up of the material in contention by the following Monday, 9 October, 1995, on pain of taking proceedings.  It is not until 17 October, 1995 that the application was filed.  I have difficulty on the material before me in inferring that an Anton Piller order is likely to serve any useful purpose now.  If there ever was a real risk that the respondents would destroy material of a kind the applicants are interested in, I would have thought, on the material before me, that that risk would have passed into reality some time before this. I am therefore not satisfied that the grant of an Anton Piller order now is likely to have the result of preserving anything in the way of material that might be destroyed if the order were not made.

There is one further area of concern that I have which disinclines me to grant the Anton Piller relief sought on the present material.  At the core of the applicants' case is evidence of what was described as nefarious conduct on the part of the respondents.  It includes forgery.  But there is no one who has taken responsibility for going on oath and saying that such nefarious conduct has indeed occurred.  Instead, there is an affidavit containing hearsay material that various people have contended that documents proffered to them by the respondents bear their forged signatures.  It seems to me that where Anton Piller relief is sought on the basis of serious misconduct by a respondent as a foundation for the necessary inferences to justify the relief, the court must, as a minimum requirement, insist on the persons with actual knowledge of that misconduct taking responsibility for going on oath and deposing to the relevant facts.  Otherwise there is no assurance that, when the time comes for making final determinations in the action, anyone will assert on oath that the respondent has indeed been guilty of the misconduct which was the foundation for the Anton Piller relief granted previously.

For those reasons I would not be prepared to grant the Anton Piller relief on the material before me, although I will give liberty to the applicants to apply for that relief if they be so advised, recognising that they may wish to supplement the material that they now rely on.

As an alternative submission, the applicants submit that an injunction should be granted now restraining the respondents from destroying material.  Counsel points out, and I think rightly, that it is difficult to see how the respondents could suffer any prejudice from such an order.  The difficulty I have with granting that relief is that, for the reasons I have already given, I have no conviction to any level of persuasion that there is a risk that evidence will be destroyed.  Moreover it seems to me that the grant of such an injunction will really serve little practical purpose as between applicant and respondent.  It does not seem to me to be appropriate to grant the alternative relief sought.

I will reserve the costs of today's application.

I certify that this and the preceding
four pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        20 October, 1995