Barnes v Fortytwo International Pty Ltd - [2010] FCAFC 87

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 2010

Judges: 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 distinguished

Date 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 Applicant

LEE HAWKSLEY
Second Applicant

AND:
FORTYTWO INTERNATIONAL PTY LTD (ACN 095 622 889)
First Respondent

BLUEFREEWAY LIMITED
Second Respondent

CAMPAIGN 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 Applicant

LEE HAWKSLEY
Second Applicant

AND:
FORTYTWO…

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.

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Details

Case: [2010] FCAFC 87
Decision Date: 14 July 2010

CaseChat Overview and Summary

The parties involved in the case of Barnes v Fortytwo International Pty Ltd were the applicants, Barnes, and the respondents, Fortytwo International Pty Ltd, along with two other entities. The nature of the dispute involved the use of documents produced by the applicants in a manner that breached an implied obligation, where the respondents used those documents in separate proceedings against the applicants. The case was heard in the court of appeal. The legal issues that the court was required to decide included whether the applicants were denied procedural fairness in relation to the application for leave nunc pro tunc, whether the primary judge had the power to grant leave nunc pro tunc, and the matters relevant to the exercise of the discretion to grant leave nunc pro tunc.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2010
Judges:		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 distinguished
Date 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

JUDGES:	STONE, JACOBSON & NICHOLAS JJ
DATE OF ORDER:	14 JULY 2010
WHERE MADE:	SYDNEY