Brosnan v Katke - [2014] FCA 974

FEDERAL COURT OF AUSTRALIA
Brosnan v Katke [2014] FCA 974

Citation: Brosnan v Katke [2014] FCA 974

Parties: MICHAEL BROSNAN, LEON BROSNAN, MARY BROSNAN, ALAN GEE, ALAN BAWDEN GRANT, BARBARA LEE GRANT, ALAN DAVID GRANT, MICHAEL CURLY and GRAEME JOINER v JEFFREY JAMES KATKE, METAGENICS AUSTRALIA PTY LTD (ACN 113 937 572), METAGENICS INC, JEFFREY BLAND and HEALTH WORLD LIMITED (ACN 010 636 165)

File number(s): QUD 384 of 2012

Judge(s): GREENWOOD J

Date of judgment: 10 September 2014

Catchwords: PRACTICE AND PROCEDURE – consideration of an application for interlocutory orders against a non‑party to a principal proceeding – consideration of the principled basis upon which an order might be made preserving the position of the parties in the period between the reservation of a judgment and the pronouncement of judgment in the principal proceeding – consideration of whether the proposed order is made in aid of relief sought in the principal proceeding and whether the order is supported as preserving the integrity of the deliberative and adjudicative processes of the Court once put in motion by the conduct of a trial and the reserving of the matter for further deliberation by the Court

Legislation: Trade Practices Act 1974 (Cth), ss 52, 80, 82, 87
Federal Court of Australia Act 1976 (Cth), s 23

Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 – cited and quoted
Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd (2012) 227 IR 201 – cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – cited
Jackson v Sterling Industries Limited (1987) 162 CLR 612 - cited
Cardile v LED Builders Pty Limited (1999) 198 CLR 380 - cited

Date of hearing: 5 September 2014

Date of last submissions: 5 September 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 149

Counsel for the Applicants: Mr M D Martin QC with Ms A Nicholas

Solicitor for the Applicants: Mills Oakley

Counsel for the Respondents: Mr W Sofronoff QC with Mr A Pomerenke QC

Solicitor for the Respondents: Johnson Winter & Slattery

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 384 of 2012

BETWEEN:
MICHAEL BROSNAN
First Applicant

LEON BROSNAN
Second Applicant

MARY BROSNAN
Third Applicant

ALAN GEE
Fourth Applicant

ALAN BAWDEN GRANT
Fifth Applicant

BARBARA LEE GRANT
Sixth Applicant

ALAN DAVID GRANT
Seventh Applicant

MICHAEL CURLY
Eighth Applicant

GRAEME JOINER
Ninth Applicant

AND:
JEFFREY JAMES KATKE
First Respondent

METAGENICS AUSTRALIA PTY LTD (ACN 113 937 572)
Second Respondent

METAGENICS INC
Third Respondent

JEFFREY BLAND
Fourth Respondent

HEALTH WORLD LIMITED (ACN 010 636 165)
Fifth Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

10 SEPTEMBER 2014

WHERE MADE:

BRISBANE

UPON ALAN JOHN GEE undertaking that he will, in good faith, discharge the responsibilities described in cls 2.2 and 2.3 of his former Senior Executive Employment Agreement dated 11 September 2009 and that he will, in good faith, discharge the Primary Objectives and Primary Responsibilities described in Sch 1 of that agreement,…

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 Brosnan v Katke

Details

AGLC: Brosnan v Katke [2014] FCA 974
Case: [2014] FCA 974
Decision Date: 10 September 2014

CaseChat Overview and Summary

In Brosnan v Katke, the court was tasked with considering an application for interlocutory orders against non-parties in the context of a broader proceeding. The applicants sought orders that would preserve the status quo in relation to the employment of certain individuals until the conclusion of the main litigation. The court was asked to determine whether the proposed orders were appropriate in aiding the relief sought in the main proceeding and whether they would maintain the integrity of the judicial process.

The legal issues before the court included the principled basis upon which interlocutory orders might be granted against non-parties, particularly in the period between the reservation of judgment and the pronouncement of judgment. The court also needed to assess whether the proposed orders were necessary to assist in achieving the relief sought in the main proceeding and whether they would uphold the deliberative and adjudicative processes of the court. The applicants argued that without these orders, the court's process could be compromised, and the parties' rights could be adversely affected.

The court found that the proposed orders were appropriate as they would maintain the status quo until the main litigation was concluded, thus aiding in the relief sought. The orders were deemed necessary to preserve the integrity of the judicial process, ensuring that the court's deliberative and adjudicative processes were not undermined. The applicants were required to provide written undertakings by a specified time, and the non-parties were joined as respondents to the principal proceeding. The court granted the orders, reserving the costs of the interlocutory application.

In summary, the court granted the applicants' request for interlocutory orders, joining Health World Limited as a respondent and preserving the employment status of the named individuals until the main proceeding was concluded. The applicants were required to provide written undertakings, and the costs of the interlocutory application were reserved.

Orders

Orders of the court

1. Health World Limited, upon the expiration of the Senior Executive Employment Agreement entered into with Alan John Gee on 11 September 2009, retain from 11 September 2014 until 14 days after the pronouncement of judgment in this proceeding, the services of Alan John Gee as Managing Director and Chief Executive Officer of Health World Limited on the terms and conditions, from week to week, upon which the former employee was employed as at 10 September 2014.

2. Health World Limited, upon the expiration of the Senior Executive Employment Agreement entered into with Graeme Joiner on 11 September 2009, retain from 11 September 2014 until 14 days after the pronouncement of judgment in this proceeding, the services of Graeme Joiner in the role Graeme Joiner was undertaking as at 10 September 2014 as an employee of Health World Limited on the terms and conditions, from week to week, upon which the former employee was employed as at 10 September 2014.

3. Alan John Gee and Graeme Joiner are to advise the Court by 4.00pm on 11 September 2014 whether the undertakings upon which Orders 1 and 2 are made, are undertakings each individual is willing to give to the Court and, if so, such undertakings are to be given in writing and submitted to the Court and to the solicitors for the respondents.

4. The applicants are to advise the Court by 4.00pm on 11 September 2014 whether the usual undertaking as to damages upon which Orders 1 and 2 are made is given, and if so given, such undertaking is to be given in writing and submitted to the Court and to the solicitors for the respondents.

5. Health World Limited is joined as a respondent to the principal proceeding.

6. The parties have liberty to apply on two days’ notice.

7. The costs of and incidental to the application for interlocutory orders filed by the applicants on 20 August 2014 be reserved.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:	Brosnan v Katke [2014] FCA 974
Parties:	MICHAEL BROSNAN, LEON BROSNAN, MARY BROSNAN, ALAN GEE, ALAN BAWDEN GRANT, BARBARA LEE GRANT, ALAN DAVID GRANT, MICHAEL CURLY and GRAEME JOINER v JEFFREY JAMES KATKE, METAGENICS AUSTRALIA PTY LTD (ACN 113 937 572), METAGENICS INC, JEFFREY BLAND and HEALTH WORLD LIMITED (ACN 010 636 165)
File number(s):	QUD 384 of 2012
Judge(s):	GREENWOOD J
Date of judgment:	10 September 2014
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application for interlocutory orders against a non‑party to a principal proceeding – consideration of the principled basis upon which an order might be made preserving the position of the parties in the period between the reservation of a judgment and the pronouncement of judgment in the principal proceeding – consideration of whether the proposed order is made in aid of relief sought in the principal proceeding and whether the order is supported as preserving the integrity of the deliberative and adjudicative processes of the Court once put in motion by the conduct of a trial and the reserving of the matter for further deliberation by the Court
Legislation:	Trade Practices Act 1974 (Cth), ss 52, 80, 82, 87 Federal Court of Australia Act 1976 (Cth), s 23
Cases cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 – cited and quoted Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd (2012) 227 IR 201 – cited Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 – cited Jackson v Sterling Industries Limited (1987) 162 CLR 612 - cited Cardile v LED Builders Pty Limited (1999) 198 CLR 380 - cited
Date of hearing:	5 September 2014
Date of last submissions:	5 September 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	149
Counsel for the Applicants:	Mr M D Martin QC with Ms A Nicholas
Solicitor for the Applicants:	Mills Oakley
Counsel for the Respondents:	Mr W Sofronoff QC with Mr A Pomerenke QC
Solicitor for the Respondents:	Johnson Winter & Slattery

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 384 of 2012

JUDGE:	GREENWOOD J
DATE OF ORDER:	10 SEPTEMBER 2014
WHERE MADE:	BRISBANE