PRACTICE AND PROCEDURE – application for leave to appeal against refusal to set aside notices to produce issued in connection with security for costs applications – documents sought accepted to be relevant – whether notices fishing – whether general rule that party issuing notice must first have evidence supporting substantive claim – nature of fishing objection – whether substantial injustice if order wrong and uncorrected
WORDS AND PHRASES – “fishing”
COSTS – unsuccessful application for leave to appeal against interlocutory order in a matter of practice and procedure – whether costs should be ordered to be paid forthwith pursuant to O 62 r 3(2)
PETER G BAILEY & ORS V BEAGLE MANAGEMENT PTY LTD & ORS V 435 OF 2000
HEEREY, BRANSON AND MERKEL JJ 12 FEBRUARY 2001 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 435 OF 2000
BETWEEN:
PETER G BAILEY AND OTHERS (ACCORDING TO THE SCHEDULE ATTACHED) FIRST APPLICANT TO EIGHTEENTH APPLICANTS
AND:
BEAGLE MANAGEMENT PTY LTD (ACN 009 280 791) FIRST RESPONDENT
B M LIMITED (ACN 009 362 350) SECOND RESPONDENT
BEAGLE HOLDINGS PTY LTD (ACN 009 280 782) THIRD RESPONDENT
JOHN CARLTON YOUNG FOURTH RESPONDENT
HELEN MARGARET SEWELL FIFTH RESPONDENT
PERPETUAL TRUSTEES W A LTD (ACN 08 666 886) SIXTH RESPONDENT
JUDGES:
HEEREY, BRANSON AND MERKEL JJ
DATE OF ORDER:
12 FEBRUARY 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Leave to appeal against the order of Goldberg J made 1 November 2000 be refused.
2.The applicants pay the respondents’ costs of the application, such costs to be taxed and paid forthwith.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bailey v Beagle Management Pty Ltd
Sign in free to access the full text
Details
AGLC
Bailey v Beagle Management Pty Ltd [2001] FCA 60
Case
[2001] FCA 60
Decision Date
CaseChat Overview and Summary
The case of Bailey v Beagle Management Pty Ltd involved the applicants, represented by Equus, seeking to challenge an order made by Goldberg J, which required the production of certain documents. The applicants argued that the notices to produce were an abuse of process and amounted to a fishing expedition. The primary judge, Goldberg J, found against the applicants, holding that the notices to produce were not an abuse of process as they were intended to obtain evidence to support the respondents' case. The applicants then sought leave to appeal from this decision. The legal issue before the court was whether the primary judge's decision was correct, and if the notices to produce were an abuse of process.
The court considered the well-established principle that a party is not entitled to use a subpoena or notice to produce for the purpose of fishing, that is, to discover whether they have a case at all. However, the court held that in this case, the notices to produce were not a fishing expedition but were intended to obtain evidence to support the respondents' case. The court found that the documents sought were relevant to the issues raised on the respondents' motions, specifically the financial position of the applicants. The court further held that the primary judge was correct in finding that the notices to produce were not an abuse of process.
The applicants sought leave to appeal from the decision of Goldberg J. However, the court found that there was no error in the primary judge's decision and refused the application for leave to appeal. The court held that the primary judge had correctly considered the relevant principles and applied them to the facts of the case. The applicants were ordered to pay the respondents' costs of the application, to be taxed and paid forthwith.
In conclusion, the court held that the primary judge's decision was correct, and the notices to produce were not an abuse of process. The applicants' application for leave to appeal was refused, and they were ordered to pay the respondents' costs of the application.
Orders
Orders of the court
1. Leave to appeal against the order of Goldberg J made 1 November 2000 be refused.
2. The applicants pay the respondents’ costs of the application, such costs to be taxed and paid forthwith.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HEEREY, BRANSON AND MERKEL JJ
At the hearing before Goldberg J the applicants did not rely on any affidavits. Before us the applicants tendered, without opposition from the respondents, an affidavit sworn by the solicitor for Equus on 1 February 2001 which deposed that the County Court costs had now been taxed at $169,374.48, and had been paid by Equus on 16 January 2001. The affidavit also referred to an Equus proceeding in the Supreme Court of Victoria. At a hearing on 24 January 2001 before Beach J the same point as arises in the present leave application had been taken. His Honour had reserved his decision and indicated he would probably await the Full Federal Court’s decision on the present leave application. Decision of the primary judge The applicants argued before the primary judge that the notices to produce were an abuse of process because they were fishing. Reliance was placed on the well known statement of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575:“In the absence of special circumstances eg Griebart v Morris [1921] KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories for the purpose of ‘fishing’, i.e. endeavouring not to obtain evidence to support his case but to discover whether he has a case at all.” The primary judge accepted that this principle applied equally to notices to produce. His Honour said:“7. There is a clear distinction to be drawn between a notice to produce which involves a fishing expedition and a notice to produce which does seek to obtain evidence to support a party’s case. I read The Commissioner for Railways v Small (supra) as being authority for the proposition that where a subpoena or notice to produce is served to obtain evidence to support a party’s case then the subpoena or the notice to produce will not be regarded as fishing or as an abuse of process or as vexatious and will not be set aside. That will only occur where a party is in fact seeking to discover whether the party has a case at all.8. I consider that under whichever head of jurisdiction this matter is considered, the documents which are sought in the notices to produce are relevant to the issues raised on the respondents’ motions. They go to the financial position of the applicant. The financial position of the corporate applicant, Equuscorp Pty Limited, speaking broadly, is a relevant issue on these applications for security for costs. As senior counsel for the applicants rightly pointed out, accounts and documents of the type sought may not necessarily provide a true and proper view of the financial position of the corporation to which they relate. Nevertheless the documents which are sought to be produced are relevant to a determination of the financial position of the corporate applicant.9. I recognise that there is no onus on a security for costs application, such as those before me, for any party to establish issues such as solvency, ability to pay debts, or insolvency. If an order is made for the production of documents pursuant to a notice to produce I do not regard such an order as establishing, or being predicated upon there being, any onus upon the corporate applicant in any way. 10. At the present time there is only affidavit evidence before me from the respondents which will have to be addressed in due course. Some of that evidence is challenged as being inadmissible and some of it is challenged as being of little probative value but 1 have to decide those issues in due course. On the other side of the record there is no affidavit evidence from the applicants, in particular the corporate applicant, but there are written submissions which assist to define what are the relevant issues to be determined on the applications for security for costs.11. I am satisfied, having regard to the material presently before me and the manner in which the issues are defined, not only by reference to that material but by reference to the submissions, that the documents which are sought are relevant to the issues which have to be determined on the applications for security for costs. 1 do not regard the notices to produce as undertaking a fishing expedition to discover whether the respondents have a case at all. I consider an appropriate characterisation of the notices to produce as being designed or calculated to obtain evidence to support their case.”Leave to appeal in matters of practice and procedure