Bertram v Naudi - [2022] FCA 385

FEDERAL COURT OF AUSTRALIA
Bertram v Naudi [2022] FCA 385

File number(s): SAD 87 of 2021

Judgment of: O'SULLIVAN J

Date of judgment: 29 March 2022

Date of publication of reasons: 11 April 2022

Catchwords: PRACTICE AND PROCEDURE – interlocutory application – application for standard discovery of a limited category of documents pursuant to r 20.17 of the Federal Court Rules 2011 (Cth) – whether the making of the order sought will facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible – whether the order will require a party to discover documents that are directly relevant – application granted – the documents sought go to the benefit or the value of any benefit which may have been received by the applicant – the documents are relevant to a factual enquiry raised on the pleadings – the order sought would not operate oppressively

Legislation:
Bankruptcy Act 1966 (Cth), ss 77A, 139L, 139W, 139ZA, 149, 149B, 149J

Federal Court of Australia Act 1976 (Cth), s 37M

Federal Court of Australia Rules 2011 (Cth), rr 20.11, 20.12, 20.14, 20.15, 20.17, 20.23

Cases cited:
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 6; (1949) 78 CLR 353

Construction, Forestry, Mining and Energy Union v BMP Coal Pty Ltd (No 2) [2011] FCA 1396

Gedeon v Commissioner of the New South Wales Crime Commission and Ors [2008] HCA 43; (2008) 236 CLR 120

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1994] HCA 42; (1944) 69 CLR 407

Division: General Division

Registry: South Australia

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 55

Date of hearing: 28 March 2022

Counsel for the Applicant: Mr S McDonald SC with Mr J Cudmore

Solicitor for the Applicant: CCK Lawyers

Counsel for the Respondent: Ms G Walker

Solicitor for the Respondent: Charlton Rowley

ORDERS

SAD 87 of 2021

BETWEEN:
DAVID MORTON BERTRAM

Applicant

AND:
ROBERT WILLIAM NAUDI

Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

29 MARCH 2022

THE COURT ORDERS THAT:
1.On or before 6 April 2022, the applicant give discovery, in accordance with r 20.17 of the Federal Court of Australia Rules 2011 (Cth), of each of the documents (including without limitation all work papers, memoranda, electronic records and records from time recording software) of the following:
(a)Any records of credits and debits to the CCK Lawyers trust account made by, for or behalf of any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd in relation to CCK File no 262261-2 and/or 261864- 1.
(b)Any communication between CCK and any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd requesting payment of fees, costs or disbursements in relation to CCK File no 262261-2 and/or 261864- 1.
(c)Any communication between any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd relating to the payment of fees, costs or disbursements incurred or to be incurred under the terms of…

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 Bertram v Naudi

Details

AGLC: Bertram v Naudi [2022] FCA 385
Case: [2022] FCA 385
Decision Date: 29 March 2022

CaseChat Overview and Summary

The parties in this case are Bertram and Naudi. The dispute arose from an interlocutory application seeking standard discovery of a limited category of documents. The application was heard in the Federal Court of Australia. The court was required to decide whether the making of the order sought would facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible, and whether the order would require a party to discover documents that are directly relevant. The court was also required to consider whether the order would operate oppressively.

The court found that the documents sought go to the benefit or the value of any benefit which may have been received by the applicant. The documents are relevant to a factual enquiry raised on the pleadings. The court was satisfied that the order sought would not operate oppressively. The court found that the respondent is entitled to an order for discovery in the terms it now seeks. The court granted the application.

The orders made by the court are that the applicant give discovery of certain documents, there be liberty to the parties to apply, the respondent is to pay the applicant’s costs thrown away of and incidental to the respondent’s interlocutory application, and the applicant is to pay the respondent’s costs of and incidental to the argument on 28 March 2022. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. On or before 6 April 2022, the applicant give discovery, in accordance with r 20.17 of the Federal Court of Australia Rules 2011 (Cth), of each of the documents (including without limitation all work papers, memoranda, electronic records and records from time recording software) of the following:

(a) Any records of credits and debits to the CCK Lawyers trust account made by, for or behalf of any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd in relation to CCK File no 262261-2 and/or 261864- 1.

(b) Any communication between CCK and any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd requesting payment of fees, costs or disbursements in relation to CCK File no 262261-2 and/or 261864- 1.

(c) Any communication between any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd relating to the payment of fees, costs or disbursements incurred or to be incurred under the terms of engagement of CCK Lawyers by any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd in relation to CCK File no 262261-2 and/or 261864-1 (the Retainers).

(d) Any document recording any payment made by Richard Bertram, Cheya Bertram or Darisha Holdings Pty Ltd for or on behalf of David Bertram in respect of legal fees.

(e) Any document recording any attempts made by David Bertram to obtain legal aid or unpaid legal assistance.

2. There be liberty to the parties to apply.

3. The respondent is to pay the applicant’s costs thrown away of and incidental to the respondent’s interlocutory application filed 15 December 2021 up to and including 23 March 2022.

4. The applicant is to pay the respondent’s costs of and incidental to the argument on 28 March 2022 certified fit for Counsel in any event.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

For these reasons, I do not accept this submission.Conclusion I am satisfied that the respondent is entitled to an order for discovery in the terms it now seeks.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SAD 87 of 2021
Judgment of:	O'SULLIVAN J
Date of judgment:	29 March 2022
Date of publication of reasons:	11 April 2022
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – application for standard discovery of a limited category of documents pursuant to r 20.17 of the Federal Court Rules 2011 (Cth) – whether the making of the order sought will facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible – whether the order will require a party to discover documents that are directly relevant – application granted – the documents sought go to the benefit or the value of any benefit which may have been received by the applicant – the documents are relevant to a factual enquiry raised on the pleadings – the order sought would not operate oppressively
Legislation:	Bankruptcy Act 1966 (Cth), ss 77A, 139L, 139W, 139ZA, 149, 149B, 149J Federal Court of Australia Act 1976 (Cth), s 37M Federal Court of Australia Rules 2011 (Cth), rr 20.11, 20.12, 20.14, 20.15, 20.17, 20.23
Cases cited:	Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 6; (1949) 78 CLR 353 Construction, Forestry, Mining and Energy Union v BMP Coal Pty Ltd (No 2) [2011] FCA 1396 Gedeon v Commissioner of the New South Wales Crime Commission and Ors [2008] HCA 43; (2008) 236 CLR 120 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1994] HCA 42; (1944) 69 CLR 407
Division:	General Division
Registry:	South Australia
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	55
Date of hearing:	28 March 2022
Counsel for the Applicant:	Mr S McDonald SC with Mr J Cudmore
Solicitor for the Applicant:	CCK Lawyers
Counsel for the Respondent:	Ms G Walker
Solicitor for the Respondent:	Charlton Rowley

ORDER MADE BY:	O'SULLIVAN J
DATE OF ORDER:	29 MARCH 2022