Dibb v Avco Financial Services Limited - [2000] FCA 1785

FEDERAL COURT OF AUSTRALIA
Dibb v Avco Financial Services Ltd [2000] FCA 1785
COSTS – Federal Court Rules O 62A – application to fix maximum costs recoverable in proceedings – whether order should be made.
PRACTICE AND PROCEDURE – discovery – whether order for production of documents is appropriate.
PRACTICE AND PROCEDURE – discovery – confidential and privileged documents said to have been inadvertently discovered – whether sufficient evidence of inadvertence.
Trade Practices Act 1974 (Cth).
Superannuation Industry (Supervision) Act 1993 (Cth).
Evidence Act 1995 (Cth), ss 118, 122.
Federal Court Rules, O 15 r 11; O 62A
Hanisch v Strive Pty Ltd (1997) 74 FCR 384, cited.
Sacks v Permanent Trustee Australia Ltd (1993) 45 FCR 509, cited.
Woodland v Permanent Trustee Co Ltd (1995) 58 FCR 139, cited.
Director of Public Prosecutions (Cth) v Kane (1997) 140 FLR 468, cited.
Mann v Carnell (1999) 168 ALR 86, cited.
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511, cited.
Simpson, Bailey and Evans, Discovery and Interrogatories (2^nd ed., 1990).
RAYMOND DIBB v AVCO FINANCIAL SERVICES LTD & ANOR
N 673 of 1999
SACKVILLE J
SYDNEY
8 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 673 OF 1999

BETWEEN:

RAYMOND DIBB
APPLICANT

AND:

AVCO FINANCIAL SERVICES LTD
FIRST RESPONDENT

AVCO SUPERANNUATION PLAN PTY LTD
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

8 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   The applicant’s motion filed on 15 September 1999 be dismissed.
2.   The first respondent’s motion filed on 9 October 2000 be dismissed.
3.   The third respondent’s motion filed on 18 October 2000 be dismissed.
4.   There be no order as to costs in relation to any of the motions.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 673 OF 1999

BETWEEN:

RAYMOND DIBB
APPLICANT

AND:

AVCO FINANCIAL SERVICES LTD
FIRST RESPONDENT

AVCO SUPERANNUATION PLAN PTY LTD
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE:

8 DECEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

A number of motions are outstanding in this matter. I shall deal with each of them in turn. I should, however, first briefly explain the nature of the litigation.
THE LITIGATION
The applicant (“Mr Dibb”) was employed by the first respondent (“Financial Services”) between May 1977 and August 1996. He was also a member of the Avco Australia Superannuation Fund (“the Fund”) of which the third respondent (“Superannuation Plan”) was the trustee. The second respondent has never been served with any process and has played no part in the proceedings.
Mr Dibb, who is not legally represented, has pleaded his case in an amended statement of claim that is 78 pages in length. It is necessary only to outline in summary terms the nature of the case he wishes to make out against Financial Services and Superannuation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1785
Decision Date: 8 DECEMBER 2000

CaseChat Overview and Summary

The case of Dibb v Avco Financial Services Limited involved the applicant, Mr Dibb, and multiple respondents, including Superannuation Plan, Avco Financial Services Limited, and others. The dispute centred on the release of certain documents that Mr Dibb had obtained and was seeking to rely on in his litigation against the respondents. The matter was heard in a relevant Australian court.

The primary legal issues that the court had to decide included whether the documents in question were rightfully obtained and released to Mr Dibb without the consent of Superannuation Plan, and whether there were grounds to dismiss the various motions filed by the parties. The court had to assess the validity of the contentions raised by Mr Dibb and the respondents, and determine if any of the motions brought by the parties warranted dismissal.

In its reasoning, the court found that there was insufficient evidence to establish that the documents were released to Mr Dibb without the consent of Superannuation Plan. Consequently, the motion brought by Superannuation Plan was dismissed. The court also noted that some of the contentions raised by Mr Dibb appeared irrelevant to the core issues at hand. Given these considerations, the court opted not to make any orders regarding the costs of the motions, deeming it appropriate to leave the matter without further financial implications for the parties involved.

The court's final orders were to dismiss the motions filed by the applicant on 15 September 1999, the first respondent on 9 October 2000, and the third respondent on 18 October 2000. Additionally, the court made no order as to costs in relation to any of the motions. This decision underscores the importance of ensuring that any document release in litigation is properly authorised and that only relevant contentions are pursued in court.

Orders

Orders of the court

1. The applicant’s motion filed on 15 September 1999 be dismissed.

2. The first respondent’s motion filed on 9 October 2000 be dismissed.

3. The third respondent’s motion filed on 18 October 2000 be dismissed.

4. There be no order as to costs in relation to any of the motions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SACKVILLE J

In these circumstances, I cannot be satisfied that the documents in question were released to Mr Dibb without the consent, express or implied, of Superannuation Plan. Its motion must therefore be dismissed. As Mr Dibb sought to raise a number of contentions on the motion that appear to have been irrelevant, I think that the appropriate course once again is to make no order as to the costs of this motion. CONCLUSION The end result is that all three motions must be dismissed. I make no orders as to costs in relation to any of the motions.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 673 OF 1999

BETWEEN:	RAYMOND DIBB APPLICANT
AND:	AVCO FINANCIAL SERVICES LTD FIRST RESPONDENT AVCO SUPERANNUATION PLAN PTY LTD THIRD RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	8 DECEMBER 2000
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE J
DATE:	8 DECEMBER 2000
PLACE:	SYDNEY