Brosnan v Katke - [2014] FCA 184

FEDERAL COURT OF AUSTRALIA
Brosnan v Katke [2014] FCA 184

Citation: Brosnan v Katke [2014] FCA 184

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 and JEFFREY BLAND

File number(s): QUD 384 of 2012

Judge(s): GREENWOOD J

Date of judgment: 6 March 2014

Catchwords: PRACTICE AND PROCEDURE – consideration of an interlocutory application to amend the applicants’ statement of claim in the proceeding – consideration of an application for further discovery having regard to the proposed amendments

Date of hearing: 26 February 2014

Date of last submissions: 26 February 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 68

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

Solicitor for the Applicants: Mills Oakley

Counsel for the Respondents: A Pomeranke 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

JUDGE:

GREENWOOD J

DATE OF ORDER:

6 MARCH 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicants are granted leave to file and serve an amended statement of claim which consolidates the various allegations of fact made in the amended statement of claim of 26 April 2013 and the amended reply of 16 July 2013 and otherwise takes account of the matters discussed in the reasons for judgment at [48] to [59].
2.The documents at para 1(q) of the interlocutory application be the subject of further discovery.
3.The costs of the interlocutory application are reserved for later determination.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 384 of 2102

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

JUDGE:

GREENWOOD J

DATE:

6 MARCH 2014

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings concern an interlocutory application made by the applicants in the principal proceeding for orders under r 20.13 of the Federal Court Rules 2011 that the respondents give discovery of documents described at paras 1(a) to (r) of the application. I will return to the appropriateness of reliance upon r 20.13 later…

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 184
Case: [2014] FCA 184
Decision Date

CaseChat Overview and Summary

Brosnan v Katke [2014] FCA 184 concerns an interlocutory application made by the applicants in the principal proceeding seeking orders for further discovery of documents and leave to amend their statement of claim. The applicants sought leave to file and serve a further amended statement of claim that consolidated various allegations of fact made in the amended statement of claim of 26 April 2013 and the amended reply of 16 July 2013 and otherwise took account of the matters discussed in the reasons for judgment at [48] to [59]. The applicants also sought an order that the respondents give discovery of documents described at paras 1(a) to (r) of the application. Greenwood J refused leave to amend the further amended statement of claim of 26 April 2013 in the terms proposed by the second further amended statement of claim. Rather, leave was granted to the applicants to amend the pleading of 26 April 2013 by filing and serving a consolidated fresh amended pleading that properly took account of the matters discussed in these reasons and which pleaded all of the material facts relied upon by the applicants in seeking to establish the contended contravention of s 52 of the Trade Practices Act 1974 (Cth). The documents described at para 1(q) of the interlocutory application were to be the subject of further discovery. The costs of the interlocutory application were reserved for later determination.

Orders