Brookfield v Davey Products Pty Ltd

[2001] FCA 167

FEDERAL COURT OF AUSTRALIA

Brookfield v Davey Products Pty Ltd [2001] FCA 167

IAN WALTER BROOKFIELD and SEPTIC PRODUCTS AUSTRALIA
(IN LIQUIDATION) v DAVEY PRODUCTS PTY LTD

SG 112 OF 1993

MANSFIELD J
22 FEBRUARY 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 112 OF 1993

BETWEEN:	IAN WALTER BROOKFIELD and SEPTIC PRODUCTS AUSTRALIA (IN LIQUIDATION) Applicants
AND:	DAVEY PRODUCTS PTY LTD Respondent
JUDGE:	MANSFIELD J
DATE:	22 FEBRUARY 2001
PLACE:	ADELAIDE

REASONS FOR DECISION

1. On the motion of the respondent dated 6 December 2000 to dismiss the applicants’ claim, which was instigated by notice of motion on 27 November 1998 in the original proceedings, I make the following orders:

   1.The proceedings commenced by notice of motion dated 27 November 1998 brought by the applicants Ian Walter Brookfield and Septic Products Australia (In Liquidation) be stayed until further order.

   2.The costs of the respondent Davey Products Pty Ltd, now called Yevad Products Pty Ltd, of and incidental to the notice of motion dated 27 November 1998, including the costs of the notice of motion dated 6 December 2000, be taxed and paid by the applicants.

2. I publish my reasons.

3. I will add some observations in the light of the affidavits which have been filed and to which I have had reference this morning.  The applicants have filed six further affidavits, all of Mr Brookfield, five filed on 20 February 2001 and a further affidavit filed by leave in Court this morning.  I have considered whether those affidavits provide material which would have affected the orders which I have just made.  I gave that consideration before making the orders today on the motion of 6 December 2000 to which I have referred.

4. It is appropriate that I explain briefly why it is that those additional affidavits did not alter my views as to the appropriateness of those orders.

5. In the affidavit sworn on 17 February 2001, comprising twenty-three paragraphs, Mr Brookfield deposes to orders which he seeks from the Court.  They are in three separate annexures to that affidavit.  The orders which he seeks on each of those three annexures are effectively the orders to which I made reference in par 16 of the reasons for decision which I have just published.  In one case, the order seeking discovery is expressed a little more widely and, in another case, the persons sought to be presented for cross‑examination as to the adequacy of the discovery previously given have been extended to an additional named person.  The affidavit which was filed by leave in Court this morning seeks to extend the operation of that order to two further additional named persons.  To that extent, therefore, the affidavits to which I have now had reference do not change the nature of the orders which Mr Brookfield previously sought, and upon which my decision was based, although they extend the proposed scope of those orders slightly.

6. The balance of the affidavits depose to the existence of evidence upon which Mr Brookfield might rely if the application were to proceed as presently constituted.  In forming the view leading to the making of the orders which I have now made, I did not assume that such material was not available to the applicants or that it might not become available to the applicants, as the concluding part of those reasons indicate (in particular par 27).  I made no such assumption.  The fact that there is now before the Court, in some form, some evidence which Mr Brookfield has assembled and presented to the Court does not therefore change my mind as to the reasons for making the orders which I have already made today.  Those reasons were not predicated on the absence of the sort of material to which he has now referred the Court.  It has not therefore been necessary for me to consider the weight or utility of that evidence, or its admissibility, if the matter were to proceed in its present form.

7. For those reasons, I do not think that the affidavits recently filed lead the Court to any different conclusion on that motion than that which I have reached.

8. The effect of the orders that I have made is that the present proceeding which, rightly or wrongly, has been instigated by a notice of motion in action SG 112 of 1993 dated 27 November 1998 is stayed until further order.  Effectively, subject to any application for leave to lift that stay which Mr Brookfield might choose to make in the future, that is the end of that proceeding.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             2 March 2001

Counsel for the Applicants:	The applicant, Ian Walter Brookfield, appeared in person
Counsel for the Respondent:	Mr J White with him Mr S Hannaford
Solicitors for the Respondent:	Thomson Playford
Date of Hearing:	18 December 2000
Date of Decision:	22 February 2001