FEDERAL COURT OF AUSTRALIA
Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87
Citation: Barnes v Fortytwo International Pty Ltd [2010] FCAFC 87 Appeal from: Application for leave to appeal: Forty Two International Pty Limited v Barnes [2010] FCA 397 Parties: KIM BARNES and LEE HAWKSLEY v FORTYTWO INTERNATIONAL PTY LTD (ACN 095 622 889), BLUEFREEWAY LIMITED and CAMPAIGN MASTER (UK) LIMITED
ALBERT KIM BARNES and LEE HAWKSLEY v FORTYTWO INTERNATIONAL PTY LTD (ACN 095 622 889), BLUEFREEWAY LIMITED
File number(s): NSD 497 of 2010
NSD 546 of 2010Judges: STONE, JACOBSON & NICHOLAS JJ Date of judgment: 14 July 2010 Catchwords: PRACTICE AND PROCEDURE – applications for leave to appeal – respondents used documents produced by the applicants in breach of the implied obligation to commence separate proceedings against the applicants – primary judge granted the respondents leave nunc pro tunc to use the documents for that purpose – whether applicants were denied procedural fairness in relation to the application for leave nunc pro tunc – whether primary judge had the power to grant leave nunc pro tunc – matters relevant to the exercise of the discretion to grant leave nunc pro tunc – primary judge’s decision not attended by sufficient doubt to justify grant of leave to appeal – applications dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 23 Cases cited: Hearne v Street (2008) 235 CLR 125 cited
Riddick v Thames Board Mills Ltd [1977] QB 881 cited
Crest Homes Plc v Marks [1987] 1 AC 829 cited
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 cited
Miller v Scorey [1996] 1 WLR 1122 distinguishedDate of hearing: 25 June 2010 Date of last submissions: 25 June 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicants: Mr R Dubler SC and Ms R C A Higgins Solicitor for the Applicants: Herbert Geer Counsel for the Respondents: Mr J M Ireland QC and Mr J S Cooke Solicitor for the Respondents: Argyle Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 497 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KIM BARNES
First ApplicantLEE HAWKSLEY
Second ApplicantAND: FORTYTWO INTERNATIONAL PTY LTD (ACN 095 622 889)
First RespondentBLUEFREEWAY LIMITED
Second RespondentCAMPAIGN MASTER (UK) LIMITED
Third Respondent
JUDGES:
STONE, JACOBSON & NICHOLAS JJ
DATE OF ORDER:
14 JULY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The Applicants are to pay the First and Second Respondents’ costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 546 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALBERT KIM BARNES
First ApplicantLEE HAWKSLEY
Second ApplicantAND: FORTYTWO…
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- Case
- [2010] FCAFC 87
- Decision Date
CaseChat Overview and Summary
The court's reasoning and outcome were based on the fact that the primary judge had granted the respondents leave nunc pro tunc to use the documents for the separate proceedings. The court examined whether the primary judge's decision was attended by sufficient doubt to justify a grant of leave to appeal. After reviewing the arguments presented by both parties, the court found that the primary judge's decision was not attended by sufficient doubt to warrant the grant of leave to appeal. The court also found that the applicants were not denied procedural fairness in relation to the application for leave nunc pro tunc, and that the primary judge had the power to grant leave nunc pro tunc. The matters relevant to the exercise of the discretion to grant leave nunc pro tunc were also considered by the court.
In conclusion, the court dismissed the application for leave to appeal and ordered that the applicants are to pay the first and second respondents’ costs. The court found that the primary judge's decision was not attended by sufficient doubt to justify the grant of leave to appeal and that the applicants were not denied procedural fairness in relation to the application for leave nunc pro tunc. The court also found that the primary judge had the power to grant leave nunc pro tunc and considered the matters relevant to the exercise of the discretion to grant leave nunc pro tunc.
Orders
Orders of the court
1. The application for leave to appeal is dismissed.
2. The Applicants are to pay the First and Second Respondents’ costs.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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