Braham v ACN 101 482 580 (No 2) - [2015] VSC 492

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S CI 2012 3622

SIMON BRAHAM	Plaintiff
v
ACN 101 482 580 PTY LTD (ACN 101 482 580) (and others according to the schedule attached)	Defendants

AND BETWEEN:

S CI 2012 3662

ERIC POON	Plaintiff
v
ACN 101 482 580 PTY LTD (ACN 101 482 580) (and others according to the schedule attached)	Defendants

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2015
DATE OF JUDGMENT:	14 September 2015
CASE MAY BE CITED AS:	Braham and Anor v ACN 101 482 580 & ors (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 492

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PRACTICE AND PROCEDURE —Appeal from Associate Judge relating to further discovery—Principles relevant for appeal of an Associate Judge’s decision —Distinction between rr 29.08 and 29.01.1(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’) discussed — Open for Associate Judge to conclude documents relevant and should be discovered —Whether Associate Judge’s reasons were adequate—Appeal dismissed —rr 29.08, 29.01.1 and 77.06 of the Rules.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (the appellants)	Mr P G Cawthorn QC with Ms G M Douglas	B2B Lawyers
For the First Defendant (the respondents)	Mr N De Young	Minter Ellison Lawyers

HIS HONOUR:

Introduction

These are appeals[1] from orders of an associate judge requiring the plaintiffs to each give further discovery in two related matters. Both were heard and argued before me as if one appeal.
[1]Braham v A.C.N. 101 482 580 Pty Ltd (S CI 2012 03622) (‘the Braham matter’) and Poon v A.C.N. 101 482 580 Pty Ltd (S CI 2012 03622) (‘the Poon matter’)

The plaintiffs each sued their former solicitor (the first defendant),[2] who they allege was retained to act for and advise them in relation to an investment in the Great Southern 2006 Project, set up to enable them to claim a large deduction on income tax. The Commissioner of Taxation (‘the Commissioner’) subsequently investigated and audited their relevant tax returns, declared that certain amounts claimed were not allowable deductions and issued notices of amended assessment. The plaintiffs, with new legal and financial advisors, challenged the amended notices and each subsequently appealed the Commissioner’s decision to the Administrative Appeals Tribunal (‘AAT’).[3]
[2]In relation to the second to fourth defendants (accountants or financial advisors) these parties were added as defendants to the proceeding pursuant to r 9.12 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’), relating to the consolidation of proceedings, and s 24 AL of the Wrongs Act 1958 (Vic), to allow the first defendant to plead concurrent wrongdoing against them: See Braham and Anor v ACN 101 482 580 Pty Ltd [2014] VSC 171 (Lansdowne AsJ)
[3]For further background detail, see Braham and Anor v ACN 101 482 580 Pty Ltd [2014] VSC 171 [1]-[7] (Lansdowne AsJ).

The plaintiffs allege that they incurred legal and advisory costs as a result of the first defendant’s…

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: [2015] VSC 492
Decision Date: 14 September 2015

CaseChat Overview and Summary

In the case of Braham v ACN 101 482 580 (No 2), the appellant sought to appeal a decision made by an Associate Judge concerning an order for further discovery in the Supreme Court of Victoria. The appellant, Braham, sought to discover additional documents from the respondent, ACN 101 482 580, which was represented by a corporate entity. The dispute centred on whether the Associate Judge correctly exercised their discretion to order further discovery of documents and whether the reasons provided for the decision were adequate.

The primary legal issues for the court to consider were the principles relevant to the appeal of an Associate Judge's decision and whether the Associate Judge had adequately exercised their discretion under the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Specifically, the court had to determine the distinction between rules 29.08 and 29.01.1(3) of the Rules, and whether the Associate Judge correctly concluded that the documents in question were relevant and should be discovered. Furthermore, the court assessed whether the Associate Judge's reasons for the decision were sufficient to justify the exercise of discretion under the Rules.

The court found that the Associate Judge was within their discretion to order the discovery of the documents in question, as the documents were relevant to the proceeding. The court held that the Associate Judge adequately exercised their discretion under the Rules, and the reasons provided were sufficient to justify the decision. The court also noted that while the appeal was from an interlocutory decision, the principles applicable to appeals from a final judgment still applied. The court concluded that the appeal should be dismissed, as the Associate Judge's decision was supported by the Rules and the reasons provided were adequate. The court further clarified the distinction between rules 29.08 and 29.01.1(3), emphasising that the former deals with the general power of the court to order discovery, while the latter concerns the court’s discretion to refuse an order for discovery.

The final orders of the court were that the appeal be dismissed, with each party to bear their own costs of the appeal.

Orders