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
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.
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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- Case
- [2023] FCA 905
- Decision Date
CaseChat Overview and Summary
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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