Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd

[2004] FCA 95

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 95

KAREN CAREY-HAZELL v GETZ BROS & CO (AUST) PTY LTD, PETER THOMPSON and TREVOR NICHOLLS
W75 of 2001

KIEFEL J
PERTH
10 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

10 FEBRUARY 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The applicant’s motion for leave to interrogate the first respondent is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:	KIEFEL J
DATE:	10 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant’s application for interrogatories against the first respondent has been renewed.  There are two aspects to the application.  The first is based upon the first respondent allegedly dissipating its assets, with the result that judgment might not be met.  In that sense the interrogatories are said to be preliminary to a mareva injunction.  The second is the applicant’s desire to know if the first respondent is insured. 

2. As to the first, it is true that the first respondent has sold its stock, which appears to be its only asset, back to St Jude Medical.  This is, however, in the context of trading losses over two financial years.  It has ceased to trade and has been absorbed into another company.  These facts appear from published audited accounts which were lodged with the Commission on 26 June 2003.

3. It is far too speculative, I consider, to suggest that there is any connexion between a decision which would have been long in planning and the discovery and the advice given that a chip was found in the mechanical valve in question in these proceedings.  There is, I consider, insufficient evidence to allow an inference that the first respondent is undertaking deliberate action to put its assets out of the reach of the Court.

4. The purpose of a mareva injunction, to which the interrogatories are said to be addressed, is to enable the court to ensure that execution on its orders is not rendered nugatory by the action of a party.  It is not to provide an applicant with information as to whether a judgment can be met.  That is what this application is in truth, I consider.

5. As to the second basis, I have discussed this with senior counsel for the applicant.  I have sympathy with the applicant not being aware as to whether the first respondent is in fact insured, although I would have thought that a non‑trading company who continues in these proceedings might suggest that there is some funding available, but this might not answer the question about whether it is in fact insured.

6. The first respondent is, however, correct in its submissions that respondents cannot be obliged to indicate whether they are insured and whether they have arrangements to fund a judgment if pronounced against them.  It works both ways in the context of litigation, as I have said.  Whilst it is no doubt in the applicant’s, and perhaps the Court’s, interest that the applicant be in a position to discontinue against a party if they are without funding, it is not in the other party’s interest to state whether they are, since this would no doubt lead to the continuation of proceedings against them.

7. In these circumstances the application will be dismissed, but I do not rule out the prospect that it can be renewed if further information, strong evidence, is obtained which is proper to a mareva injunction.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            10 February 2004

Counsel for the Applicant:	Mr B HK Donovan QC with Mr CP Shanahan
Solicitor for the Applicant:	Wojtowicz Kelly
Counsel for the First Respondent:	Mr N Hutley SC and Mr D Villa
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second and Third Respondents	Mr WS Martin QC and Mr AS Derrick
Solicitors for the Second and Third Respondents	Clayton Utz
Date of Hearing:	10 February 2004
Date of Judgment:	10 February 2004