Brookfield v Yevad Products Pty Ltd (formerly Davey Products Pty Ltd)

[2002] FCA 1639

FEDERAL COURT OF AUSTRALIA

Brookfield v Yevad Products Pty Ltd (formerly Davey Products Pty Ltd) [2002] FCA 1639

IAN WALTER BROOKFIELD v YEVAD PRODUCTS PTY LTD (FORMERLY DAVEY PRODUCTS PTY LTD)

No S 257 of 2002

von DOUSSA J
ADELAIDE
6 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 257 OF 2002

BETWEEN:	IAN WALTER BROOKFIELD APPELLANT
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY DAVEY PRODUCTS PTY LTD) RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	6 DECEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        Notice of motion dismissed.

2.        Appellant to pay the respondent’s costs in the notice of motion fixed at $500.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 257 OF 2002

BETWEEN:	IAN WALTER BROOKFIELD APPELLANT
AND:	YEVAD PRODUCTS PTY LTD (FORMERLY DAVEY PRODUCTS PTY LTD) RESPONDENT

JUDGE:	von DOUSSA J
DATE:	6 DECEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This matter has been listed today to deal with a notice of motion filed by Mr Brookfield which seeks an order expediting the hearing of a notice of appeal which he filed on 27 November 2002 against a judgment of Mansfield J that was given on 6 November 2002.

2. The notice of motion and supporting affidavit assert that there is an urgency about the proposed appeal because the judgment of Mansfield J sets a dangerous precedent and provides an opportunity for abuse of procedural rules in Australia which should be corrected at the earliest opportunity.

3. The complaint of Mr Brookfield in the proceedings before Mansfield J was that a failure to strictly comply with the provisions of O 15 of the Federal Court Rules (the Rules) relating to discovery had occurred because discovery was verified by a person who was not an officer of the true respondent and who was in fact the officer of another company.  Part of Mr Brookfield’s complaint carried with it the assertion that discovery was in fact given by a company who was not the true respondent.

4. Mansfield J in his decision held that O 15 had not been strictly complied with because Mr Wilsdon, who swore the affidavit of discovery, was not an officer or member of the true respondent company.  However, having reviewed the evidence before him, Mansfield J found that the failure to comply was not sinister in nature and was the result of an oversight.  Mr Brookfield now contends that by characterising a failure to comply with the requirements of the Rules as an oversight, a dangerous precedent has been set which will enable other people to put to one side due compliance with the Rules simply by saying that an oversight has occurred.

5. Having heard Mr Brookfield this morning, I am satisfied that the decision of Mansfield J does not set a dangerous precedent.  The decision turns on a specific finding of fact and is not one that lends itself to being used in the way in which Mr Brookfield contends.  In any event, even if it had the wider public interest connotations that Mr Brookfield suggests, I do not think that this would render the matter one that should be expedited.  To expedite one person’s case necessarily disadvantages other people who have a prior position in the list of cases.  Even if the decision had the public interest importance suggested, I think the matter should take its ordinary course in the Full Court list.

6. For these reasons, I therefore refuse the application to expedite the appeal.  I add, however, as I pointed out to Mr Brookfield in argument, that the next Full Court list is in February 2003.  The list is already settled and it would have been impossible at a practical level to arrange to have the appeal listed at that time.  In the ordinary course, his notice of appeal will be listed in the May sittings of the Full Court next year.  That is what will now happen.

7. I therefore dismiss the notice of motion.

8. There will be an order that Mr Brookfield pay the respondent’s costs of the notice of motion fixed at $500.00. 

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

Associate:

Dated:             10 February 2003

The Appellant appeared in person.
Counsel for the Respondent:	Mr J White
Solicitor for the Respondent:	Thomson Playford
Date of Hearing:	6 December 2002
Date of Judgment:	6 December 2002