Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3)

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FEDERAL COURT OF AUSTRALIA

Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2023] FCA 905

File number: QUD 124 of 2023
Judgment of: DERRINGTON J
Date of judgment: 4 August 2023
Catchwords: PRACTICE AND PROCEDURE – production of documents in pleadings or affidavits – whether document was mentioned in affidavit within the meaning of r 20.31(1) of the Federal Court Rules 2011 (Cth) – no direct allusion or reference to document – application dismissed
Legislation:

Federal Court Rules 1979 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Apotex Pty Ltd v ICOS Corporation (No 2) [2017] FCA 589

Australian Competition and Consumer Commission v Australialink Pty Ltd (2009) 177 FCR 35

Australian Competition and Consumer Commission v Visy Industries (2006) ATPR ¶42-102

Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731

King v GIO Australia Holdings Ltd [2001] FCA 1487

Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233

Quilter v Heatly (1883) 23 Ch D 42

Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Number of paragraphs: 35
Date of hearing: 1 August 2023
Counsel for the Plaintiff: Mr B O’Donnell KC
Solicitor for the Plaintiff: Thomson Geer
Counsel for the First and Third Defendants: Mr M Martin KC with Mr A McKinnon
Solicitor for the Defendants: Mills Oakley
Counsel for the Second Defendant: The Second Defendant did not appear

ORDERS

QUD 124 of 2023
BETWEEN:

CANSTRUCT PTY LTD ACN 008 869 467

Plaintiff

AND:

PROJECT SEA DRAGON PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 604 936 192

First Defendant

SHAUN CHRISTOPHER MCKINNON AND ANDREW PETER FIELDING IN THEIR CAPACITY AS DEED ADMINISTRATORS OF PROJECT SEA DRAGON PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) ACN 604 936 192

Second Defendant

SEAFARMS GROUP LIMITED ACN 009 317 846

Third Defendant

ORDER MADE BY:

DERRINGTON J

DATE OF ORDER:

4 AUGUST 2023

THE COURT ORDERS THAT:

1.The plaintiff produce forthwith to the first and third defendants the documents described at paragraph 1(a) and (b) of the first and third defendants’ application filed 31 July 2023.

2.The costs of the application be reserved.

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


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. By an application dated 27 July 2023 and filed on 31 July 2023, the first and third defendants in these proceedings, Project Sea Dragon Pty Ltd (subject to a deed of company arrangement) (Project Sea Dragon) and Seafarms Group Limited, have sought orders pursuant to r 20.31(3) of the Federal Court Rules 2011 (Cth) for the production of certain documents said to have been “mentioned” in an affidavit of Mr Damien Cavanagh sworn and filed on 21 April 2023.

  2. The application arose as a result of the first and third defendants having issued to the plaintiff, Canstruct Pty Ltd (Canstruct), a notice to produce dated 21 June 2023, pursuant…

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Details
Case
[2023] FCA 905
Decision Date

CaseChat Overview and Summary

Canstruct Pty Ltd initiated legal proceedings against Project Sea Dragon Pty Ltd in the Federal Court of Australia, seeking damages for alleged breaches of contract. The dispute involved complex contractual obligations and the execution of various works, with Canstruct asserting that Project Sea Dragon had failed to fulfill its obligations under the agreement. As part of the litigation, Project Sea Dragon sought an order for Canstruct to produce specific documents that it believed were relevant to the case. The central issue before the court was whether these documents were sufficiently mentioned in the affidavits submitted by Canstruct as required by rule 20.31(1) of the Federal Court Rules 2011 (Cth).

The court examined whether the affidavits contained a direct allusion or reference to the documents in question. Rule 20.31(1) mandates that any document on which a party relies in their pleadings or affidavits must be mentioned in those documents. The defendants argued that the plaintiff's affidavits did not adequately reference the documents, thus failing to comply with the rule. Conversely, Canstruct contended that the references were sufficient under the rule’s requirements. The court had to determine whether the references in the affidavits were adequate or whether they fell short of what the rule demands.

After careful consideration of the arguments and the contents of the affidavits, the court concluded that the documents were not sufficiently mentioned in the affidavits as required by rule 20.31(1). The references made by Canstruct were deemed insufficient to satisfy the rule, as they did not constitute a direct allusion or reference to the documents. Consequently, the court dismissed the application for an order compelling the production of the documents. The court also reserved the costs of the application for further consideration.

In light of the court’s decision, the plaintiff was ordered to produce the documents described in the defendants' application filed on 31 July 2023 forthwith. The costs of the application were to be reserved for subsequent determination. This ruling underscores the importance of precise compliance with procedural rules regarding the mention of documents in pleadings and affidavits.

Orders

Orders of the court

1. The plaintiff produce forthwith to the first and third defendants the documents described at paragraph 1(a) and (b) of the first and third defendants’ application filed 31 July 2023.

2. The costs of the application be reserved.

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

Background

Background to the litigation

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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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