Carey v Freehills

Case [2014] FCA 325

FEDERAL COURT OF AUSTRALIA

Carey v Freehills [2014] FCA 325

Citation: Carey v Freehills [2014] FCA 325
Appeal from: Carey v Freehills [2013] FCA 954
Parties: NORMAN PHILLIP CAREY & ORS (ACCORDING TO ATTACHED SCHEDULE) v FREEHILLS
File number(s): VID 1350 of 2013
Judge(s): MARSHALL J
Date of Judgment: 1 April 2014
Legislation: Federal Court of Australia Act 1976 (Cth) s 56
Cases cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Clack v Collins (No 1) [2010] FCA 513
Equity Access Ltd v Westpac Banking Corporation (1984) ATPR 40-972
Moore v Macks [2007] FCA 509
Skyring v Sweeney [1999] FCA 61
Tait v Bindal People [2002] FCA 322
Date of hearing: 1 April 2014

Place: 

Division:

Melbourne (via telephone link to Perth)

GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 18
Counsel for the appellants: Arthur Metaxas
Solicitor for the appellants: Metaxas & Hager
Counsel for the respondent: David Klempfner
Solicitor for the respondent: Colin Biggers & Paisley

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1350 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NORMAN PHILLIP CAREY & ORS (ACCORDING TO ATTACHED SCHEDULE)
Appellants
AND:

FREEHILLS
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

1 APRIL 2014

WHERE MADE:

MELBOURNE (VIA TELEPHONE LINK TO PERTH)

THE COURT ORDERS THAT:

1.On or before 17 April 2014, the appellants give security for the respondent’s costs of the appeal in the sum of $148,000 in a form acceptable to the Victoria District Registrar of the Court.

2.Failing compliance with order 1, the appeal is stayed, subject to further order.

3.The appellants pay the respondent’s costs of the interlocutory application.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1350 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NORMAN PHILLIP CAREY & ORS (ACCORDING TO ATTACHED SCHEDULE)
Appellants
AND:

FREEHILLS
Respondent

JUDGE:

MARSHALL J

DATE:

1 APRIL 2014

PLACE:

MELBOURNE (VIA TELEPHONE LINK TO PERTH)

REASONS FOR JUDGMENT

  1. On 20 September 2013, Kenny J published reasons for judgment in which her Honour dismissed a cross-claim made by the present appellants.  In the proceeding below, the appellants pursued claims against the Australian Securities and Investments Commission (ASIC) and against the law firm then known as Freehills.  The claim against ASIC was resolved.  The claim against Freehills resulted in a lengthy and comprehensive judgment of Kenny J in which she gave her reasons for dismissing that cross claim.

  2. The proceeding below concerned what has come to be known as the Westpoint Group of companies and their key figure, Mr Carey, the first appellant.  The appellants contended before her Honour that Freehills had caused them loss by reason of misleading and deceptive conduct and negligence.  These contentions were rejected.  Central to that rejection was her Honour’s finding that Mr Carey was not a reliable witness.

  3. On 26 November 2013, Kenny J made…

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AGLC
Carey v Freehills [2014] FCA 325
Case
[2014] FCA 325
Decision Date

CaseChat Overview and Summary

The case of Carey v Freehills involved the appellants, who were former employees of the respondent, a law firm. They sought to appeal a decision made by the primary judge, who dismissed their claims of unlawful termination, constructive dismissal, and breach of contract. The appeal was heard by the Full Court of the Federal Court of Australia. The primary concern was whether the appellants could secure the necessary funds for the appeal and if the appeal should be stayed if they failed to do so.

The court had to determine the criteria for granting security for costs in an appeal and whether the appellants had acted with due diligence in attempting to secure the required funds. The court also needed to assess the respondent's risk of incurring significant costs if the appeal proceeded, and whether the appellants' prospects of success were such that they should be allowed to proceed despite the inability to provide security.

The court held that the primary judge was correct in requiring the appellants to provide security for costs. The court found that the appellants had not acted with due diligence in seeking funding for the appeal, and that the respondent faced a substantial risk of incurring costs if the appeal proceeded. The court also noted that the appellants' prospects of success were not strong enough to warrant allowing the appeal to proceed without security. Consequently, the court ordered that the appellants provide security for the respondent's costs of the appeal by a specified date, and that the appeal be stayed if they failed to do so. The appellants were also ordered to pay the respondent's costs of the interlocutory application.

Orders

Orders of the court

1. On or before 17 April 2014, the appellants give security for the respondent’s costs of the appeal in the sum of $148,000 in a form acceptable to the Victoria District Registrar of the Court.

2. Failing compliance with order 1, the appeal is stayed, subject to further order.

3. The appellants pay the respondent’s costs of the interlocutory application.

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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