Cole v Quest Software Pty Ltd

Case [2014] FCCA 1251

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLE v QUEST SOFTWARE PTY LTD [2014] FCCA 1251
Catchwords:
PRACTICE AND PROCEDURE – Interlocutory application seeking tender of late evidence by Respondent as to its constitution – Application opposed by applicant – Relevant considerations – Application to tender late evidence refused.

Legislation:

Evidence Act 1995 (Cth), ss.59, 69
Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42
Federal Court of Australia Act 1976 (Cth), ss.37M, 37N
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.05
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cole v Quest Software Pty Ltd ABN 81 078 118 144 [2013] FCCA 1160
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2009] NSWSC 1370
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Jones v Dunkel (1959) 101 CLR 298
Maronis Holdings Ltd & Ors v Nippon Credit Australia Pty Ltd & Ors [2000] NSWSC 753
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17
Platinum Investment Management Limited v Chief Commissioner of State Revenue [2009] NSWSC 998
Queensland & Anor v JL Holdings Pty Ltd(1997) 189 CLR 146
Applicant: LAURENCE COLE
Respondent: QUEST SOFTWARE PTY LTD (ABN 81 078 118 144)
File Number: SYG 871 of 2013
Judgment of: Judge Lloyd-Jones
Hearing date: 9 May 2014
Date of Last Submission: 16 May 2014
Delivered at: Sydney
Delivered on: 18 June 2014

REPRESENTATION

Counsel for the Applicant: Mr T. Saunders
Solicitors for the Applicant: Mr S. Ratu of Allens
Counsel for the Respondent: Mr C. Lambert
Solicitors for the Respondent: Mr M. Green

ORDERS

  1. Leave to tender Annexure “SR 2” to the Affidavit of Sikeli Ratu sworn 5 May 2014 and filed on 9 May 2014 (the “Ratu Affidavit”) into evidence is refused.  The tender of the Ratu Affidavit otherwise be allowed.

  2. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 871 of 2013

LAURENCE COLE

Applicant

And

QUEST SOFTWARE PTY LTD (ABN 81 078 118 144)

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 5, 6 and 9 May 2014 these proceedings came before the Court for final hearing.  An earlier interlocutory judgment was handed down by the Court in these proceedings on 22 August 2013 in respect of an application filed by the respondent, Quest Software Pty Ltd ABN 81 078 118 144 (“Quest”), seeking to set aside a subpoena that had been issued by the applicant, Laurence Cole (“Mr Cole”); Cole v Quest Software Pty Ltd ABN 81 078 118 144 [2013] FCCA 1160. It is convenient to refer to those reasons to provide a background of the proceedings generally. At [1] and [4] therein I stated:

    1. This is an application filed on 26 April 2013 by the applicant, Laurence Cole (“Mr Cole”), alleging breaches by the respondent, Quest Software Pty Ltd (“Quest”), of the Trade Practices Act 1974 (Cth) (the “TPA”), the Australian Consumer Law (the “ACL”) and the Fair Trading Act 1987 (NSW) (the “FTA”) in respect…

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Details
AGLC
Cole v Quest Software Pty Ltd [2014] FCCA 1251
Case
[2014] FCCA 1251
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Respondent, Quest Software Pty Ltd, to adduce further evidence in proceedings before His Honour Judge Lloyd-Jones. The Applicant, Mr Cole, had previously been precluded from adducing further evidence by an order made on 12 February 2014. Despite this, on 30 April 2014, the Respondent's solicitor forwarded a copy of the alleged Constitution and a Special Resolution of Quest Australia Pty Ltd to the Applicant's solicitor, indicating an intention to tender these documents at the hearing scheduled for 5 May 2014.

The central legal issue was whether the Respondent should be permitted to tender the alleged Constitution and Special Resolution of Quest Australia Pty Ltd at the hearing, given that these documents had been in the Respondent's possession since 2007 and had not been disclosed or relied upon in the Respondent's pleadings, affidavit evidence, or prior correspondence. The Applicant argued that it was taken by surprise by this late tender, particularly as the documents related to the validity of Mr Cole's appointment as "managing director" for the purposes of the *Corporations Act 2001* (Cth) and the validity of a Deed of Release executed by Mr Cole.

His Honour Judge Lloyd-Jones dismissed the Respondent's oral application to adduce the further evidence. The court noted that the Respondent had not sought to amend its pleadings or make a formal application to the court to rely on these documents at any time since the commencement of proceedings. The attempt to tender the documents, along with an affidavit sworn by the Respondent's solicitor on the day of the hearing, was considered an attempt to introduce new issues and evidence at a very late stage, causing surprise to the Applicant. The court applied principles relating to the timely disclosure of evidence and the need for parties to provide adequate notice of their case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 12 February 2014 His Honour Judge Lloyd-Jones made the following order:"The Respondent's oral application seeking to adduce further evidence is dismissed.It is to be noted that this order precluded the Respondent from adducing further evidence in the proceedings. On 30 April 2014 the Respondent's solicitor forwarded a copy of alleged Constitution of Quest Australia Pty Ltd (hereinafter "Quest Australia") and the Special Resolution to the Applicant's solicitor informing him that they intended to attempt to tender these Documents at the hearing to commence on 5 May 2014. Although it is apparent that both the Special Resolution and the alleged Constitution of Quest Australia has been in possession of the Respondent since 28 November 2007[13] at no time since the commencement of the proceedings had the Respondent made any reference to its intention to rely upon either document in its Pleadings in Defence, in its' affidavit evidence or in any or its previous correspondence with the Applicant's solicitor. In this regard the Applicant was completely taken by surprise three days before the hearing.[13] See the date inscribed on the Special Resolution of the Sole Member of Quest Australia. On 1 May 2014 the Applicant's solicitor wrote to the Respondent's solicitor seeking to know the purpose for which the Respondent wished to tender the document. On Friday 2 May 2014 the Applicant's solicitor received an email from the Respondent's solicitor informing him that the Respondent intended to use the documents with respect to the issues as to whether Mr Cole "was appointed a 'managing director' for the purposes of the Corporations Act2001 (Cth); and whether the Deed of Release executed by Mr Cole on 2 May 2011 was validly executed by Quest." At no time since the commencement of the proceedings had the Respondent put the Applicant on notice that it intended to allege that Mr Cole was not validly appointed for the purposes of the Corporations Act2001 (Cth) or that the Constitution of Quest Australia in some way allowed for the execution of the Deed of Release (hereinafter "the Deed") in the form in which Mr Sheers purported to execute the Deed, which the Applicant denies it does, nor did the Respondent's Pleadings in Defence plead these allegations. In this regard the Applicant was completely taken by surprise on the last business day before the hearing. Although it could have at any time prior to the hearing made an Application to the court to amend its' Pleadings in Defence and to plead the alleged effect of these Documents, which the Applicant denies, at no time since the commencement of the proceedings has the Respondent done so. Just prior to hearing commencing on 5 May, 2014 the Respondent's solicitor handed the Applicant's solicitor a copy of an affidavit made on the same date by the Respondent's solicitor annexing the Documents and sought to read that affidavit and tender Quest Australia's Constitution and the Special Resolution. Although at hearing the Applicant's counsel did not object to the tender of the emails annexed to Mr Ratu's affidavit[14], the Applicant strongly objects to both the reading of the affidavit in an attempt to bring the alleged Constitution and special resolution into evidence and the attempt at the time of hearing to "tender" of the Documents.[14] Transcript at p173 lines 1 to 5 (T173.1-5)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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