FEDERAL COURT OF AUSTRALIA
Dove v Everforex Financial Pty Ltd [2023] FCA 1171
File number: NSD 817 of 2022 Judgment of: GOODMAN J Date of judgment: 3 October 2023 Catchwords: PRACTICE AND PROCEDURE – application to set aside Notices to Produce – relevance of documents sought – whether the potential operation of s 570 of the Fair Work Act 2009 (Cth) operates as a bar to the production of documents relevant to an application for security for costs –application dismissed Legislation: Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 31
Fair Work Act 2009 (Cth), s 570
Federal Court Rules 2011 (Cth), rr 20.31, 30.28
Banking, Finance and Insurance Award 2020 (Cth)
Cases cited: Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194; (2020) 283 FCR 123
Betfair Pty Ltd v Racing New South Wales (No 2) [2009] FCA 195
Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3) [2023] FCA 905
Dove v Everforex Financial Pty Ltd [2022] FedCFamC2G 752
Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67; (2021) 284 FCR 546
Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233
Quilter v Heatley (1883) 23 Ch D 42
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 32 Date of last submission: 22 September 2023 Date of hearing: 4 August 2023, and on the papers Counsel for the First Applicant: Mr C Lambert Solicitor for the First Applicant: Financial Decisions Legal Pty Ltd Counsel for the Respondent: Mr I Neil SC with Mr I Leong Solicitor for the Respondent: SHL & Associates Lawyers ORDERS
NSD 817 of 2022 BETWEEN: CHRISTIAN CHARLES DOVE
First Applicant
GFY MARKETS PTY LTD
Second Applicant
AND: EVERFOREX FINANCIAL PTY LTD ACN 115 459 124
Respondent
AND BETWEEN: EVERFOREX FINANCIAL PTY LTD ACN 115 459 124
Cross-Applicant
AND: CHRISTIAN CHARLES DOVE (and others named in the Schedule)
First Cross-Respondent
ORDER MADE BY:
GOODMAN J
DATE OF ORDER:
3 OCTOBER 2023
THE COURT ORDERS THAT:
1.The respondent/cross-applicant’s application to set aside the Notices to Produce dated 20 December 2022, 7 June 2023 and 13 July 2023 (Notices to Produce) be dismissed.
2.The respondent/cross-applicant is to produce for inspection the documents sought by the Notice to Produce dated 20 December 2022 by 9.30 a.m. on 4 October 2023.
3.The respondent/cross-applicant is to produce to the Court the documents sought by the Notices to Produce dated 7 June 2023 and 13 July 2023 at 9.30 a.m. on 4 October 2023.
4.The first applicant/first cross-respondent and the respondent/cross-applicant are to confer and to provide to the Associate to Goodman J by 4.00 p.m. on 9 October 2023 an agreed proposed timetable for submissions as to the costs of the respondent/cross‑applicant’s application to set aside the Notices to Produce, or failing agreement, competing proposed timetables.
Note: Entry of orders is dealt with…
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- Case
- [2023] FCA 1171
- Decision Date
CaseChat Overview and Summary
The court found that the documents sought were relevant to the security for costs application and that the potential operation of section 570 of the Fair Work Act 2009 (Cth) did not bar the production of the documents. The court reasoned that the distinction between current and historical records of the company's financial position was a matter of weight, not relevance. Furthermore, the court held that all the documents caught by the Notices to Produce were relevant to the question of loss. The court concluded that the application to set aside the Notices to Produce should be dismissed and ordered the prompt production for inspection of the documents caught by the first Notice to Produce and for the prompt production to the Court of the documents caught by the second Notice to Produce. The court also ordered that the parties provide a timetable for submissions on the question of costs.
Orders
Orders of the court
1. The respondent/cross-applicant’s application to set aside the Notices to Produce dated 20 December 2022, 7 June 2023 and 13 July 2023 (Notices to Produce) be dismissed.
2. The respondent/cross-applicant is to produce for inspection the documents sought by the Notice to Produce dated 20 December 2022 by 9.30 a.m. on 4 October 2023.
3. The respondent/cross-applicant is to produce to the Court the documents sought by the Notices to Produce dated 7 June 2023 and 13 July 2023 at 9.30 a.m. on 4 October 2023.
4. The first applicant/first cross-respondent and the respondent/cross-applicant are to confer and to provide to the Associate to Goodman J by 4.00 p.m. on 9 October 2023 an agreed proposed timetable for submissions as to the costs of the respondent/cross‑applicant’s application to set aside the Notices to Produce, or failing agreement, competing proposed timetables.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
Mr Dove’s submissions may be summarised as follows:(1)as to the first Notice to Produce:(a)the only grounds for objection to production are those set out in r 20.31(2)(b) and (c) and no objection has been taken on such grounds;(b)thus, Mr Dove has an entitlement to inspect the documents the subject of that Notice by dint of the operation of r 20.31 of the Rules;(c)in any event, the documents sought are relevant to (at least) the question of whether Everforex has suffered a loss by reason of the matters alleged in its cross-claim;(2) as to the second Notice to Produce:(a)the documents sought are relevant to:(i)the calculation of Everforex’s claim for damages under the cross-claim;(ii)the separate determination application, on the basis that they might establish that there is no loss and thus a separate determination of the question of loss would be inutile; and(iii)Everforex’s ability to meet an adverse costs order. In this regard it is “more probable than not” that s 570(2) of the FW Act will be engaged by reason of the conduct of Everforex and the documents sought should not be excluded from consideration at this stage of the proceeding; and(b)the audit reports already in evidence are unsigned.F. CONSIDERATIONFirst Notice to Produce As noted above, the first Notice to Produce is a Notice under r 20.31 of the Rules. That rule provides:20.31 Notice to produce document in pleading or affidavit(1) A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.(2) The second party must, within 4 days after being served with the notice to produce, serve the first party with a notice:(a) stating:(i) a time, within 7 days after service of the notice, when the document may be inspected; and(ii) a place where the document may be inspected; or(b) stating:(i) that the document is not in the second party’s control; and(ii) to the best of the second party’s knowledge—where the document is and in whose control it is; or(c) claiming that the document is privileged and stating the grounds of the privilege.(3) If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document. Subject to the proper invocation of r 20.31(2)(b) or (c), neither of which is relied upon in the present case, this rule in effect provides Mr Dove with a right to inspect any document mentioned in an affidavit filed by Everforex. It is a rule of some antiquity. In Quilter v Heatley (1883) 23 Ch D 42 at 50, Lindley LJ explained that the analogous rule was intended to give the party receiving the pleading or affidavit the same advantage as if the document referred to had been set out in full in that pleading or affidavit. See also Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3) [2023] FCA 905 at [28] (Derrington J); Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233 at [21] (Jackson J). It is also a rule of fundamental principle, reflecting basic procedural fairness: Betfair Pty Ltd v Racing New South Wales (No 2) [2009] FCA 195 at [11] (Perram J). Questions of relevance and the operation of s 570 of the FW Act do not arise.