Fahey, Mary-Anne & Ors v Stephens Publishing Pty Ltd & Anor Stephens Publishing Pty Ltd & Anor v McFadyen, Ian Hector
[1997] FCA 143
•6 March 1997
CATCHWORDS
COSTS - application that a non party pay costs awarded in favour of a party - respondents seeking damages against applicants pursuant to undertaking to Court given by applicants - whether respondents should be treated as applicants seeking damages against respondents - whether general principles relating to security for costs apply.
TORT - wrongful procurement of breach of contract - wrongful procurement of breach of equitable duty - conspiracy - damages and costs in other proceeding awarded in favour of applicants - whether respondent had the knowledge, intention, purpose or motive of depriving the applicants of the benefit of the judgment - use of circumstantial evidence as to state of mind of the respondent - whether principal facts (factum probandum) can be inferred from evidentiary facts (factum probans).
Air Express Limited v Ansett Transport Industries (Operations) Property Limited (1981) 146 CLR 249
Morey v Transurban City Link Ltd (No VG 124 of 1996) 7 February 1997, unreported.
Microcorp Pty Ltd v Terran Computers Pty Ltd (No. VG 258 of 1992, unreported)
Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150
MARY-ANNE FAHEY and MEDIA ARTS CORPORATION PTY LTD and TREVOR YOUNG v STEPHENS PUBLISHING PTY LTD and FILM AND BOOK PUBLISHING PTY LTD No VG 459 of 1988
STEPHENS PUBLISHING PTY LTD and FILM AND BOOK PUBLISHING PTY LTD v IAN HECTOR McFADYEN No VG 195 of 1993
NORTHROP J
MELBOURNE
6 MARCH 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 459 of 1988
GENERAL DIVISION
B E T W E E N :
MARY-ANNE FAHEY AND MEDIA ARTS CORPORATION PTY LTD
AND TREVOR YOUNG
Applicants
A N D :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
Respondents
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 6 MARCH 1997
MINUTES OF ORDERS
The Court Orders that the respondents' motions, notices of which are dated 31 March 1994 and 11 April 1994 respectively, seeking orders that Ian Hector McFadyen pay their costs of the assessment of damages in this proceeding and their costs of the appeal brought by the applicants and discontinued on 28 July 1992 in matter No NG 374 of 1991 be refused with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 195 of 1993
GENERAL DIVISION
B E T W E E N :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
Applicants
A N D :
IAN HECTOR MCFADYEN
Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 6 MARCH 1997
MINUTES OF ORDERS
The Court orders that the application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 459 of 1988
GENERAL DIVISION
B E T W E E N :
MARY-ANNE FAHEY AND MEDIA ARTS CORPORATION PTY LTD
AND TREVOR YOUNG
Applicants
A N D :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
RespondentsNo VG 195 of 1993
B E T W E E N :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
Applicants
A N D :
IAN HECTOR MCFADYEN Respondent
Index to Reasons for Judgment
Pages
A. Introduction 1 - 3
B. The motions in proceeding No VG 459 of 1988 3 - 17
1. Interlocutory orders and undertaking 3 - 5
2.
2. The orders in proceeding No VG 459 of 1988 6 - 8
3. Relevant steps taken after orders made on 27 July 1989 8 - 10
4.Steps taken in the "application" by Stephens Publishing 10 - 11
5. The Appeal 11 - 12
6. Additional relevant facts 12
7. The basis for the claims made in support of the motions 13 - 14
8. Conclusions 14 - 17
C. Proceeding VG 195 of 1993 17 - 61
1. Introduction 17
2.The pleadings 18 - 21
3. Nature of evidence 21 - 23
4.The stage setting 23 - 27
5. The credibility of Mr McFadyen 27 - 30
6. Summary of evidentiary facts subsequent to 23 December 1988 30 - 40
7. Extracts from transcript of re-examination of Mr McFadyen 40 - 52
8.The round robin of cheques 52 - 56
9. General comments 57 - 61
10. Conclusion 61
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 459 of 1988
GENERAL DIVISION
B E T W E E N :
MARY-ANNE FAHEY AND MEDIA ARTS CORPORATION PTY LTD
AND TREVOR YOUNG
Applicants
A N D :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
RespondentsNo VG 195 of 1993
B E T W E E N :
STEPHENS PUBLISHING PTY LTD AND FILM AND BOOK
PUBLISHING PTY LTD
Applicants
A N D :
IAN HECTOR MCFADYEN Respondent
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 6 MARCH 1997
REASONS FOR JUDGMENT
A. Introduction
Two separate matters are before the Court. They were heard together and, with the consent of the parties, evidence given in one can be treated as evidence in the other. The first matter is in proceeding No VG 459 of 1988. Pursuant to notice dated 11 April 1994, Stephens Publishing Pty Ltd and Film and Book Publishing Pty Ltd (in these reasons jointly referred to as "Stephens Publishing") are seeking orders that Ian Hector McFadyen pay:
(i)Stephens Publishing's costs of the assessment of damages in the proceeding
(ii)Stephens Publishing's costs of an appeal brought by Mary-Anne Fahey and Media Arts Corporation Pty Ltd from the order of damages in the proceeding. The appeal was proceeding No VG 374 of 1991.
It is noted that Mr McFadyen was not a party named in proceeding No VG 459 of 1988 or in proceeding No VG 374 of 1991. The appeal was commenced on 4 December 1991 and was abandoned on 28 February 1992 by the giving of a notice of discontinuance.
The second matter is the hearing of the application No VG 195 of 1993. This proceeding was commenced by Stephens Publishing on 19 May 1993. Mr McFadyen is named as the respondent. By the application, as amended pursuant to leave granted on 12 March 1996, Stephens Publishing is seeking the following relief:
1.Damages for wrongful procurement of breach of contract;
1A.Alternatively to 1, damages for wrongful procurement of breach of an equitable duty;
2. Damages for conspiracy.
The application, as amended, is supported by a statement of claim as amended pursuant to leave granted on 12 March 1996 and 20 March 1996. For ease of reference, these two documents will be referred to as the application and the statement of claim respectively.
At the hearing of these two matters, Stephens Publishing was represented by counsel but Mr McFadyen did not have legal representation. He appeared on his own behalf. The presence of a litigant in person in lengthy and complex proceedings has made the task of the Court and of counsel for Stephens Publishing more onerous.
B.The motions in proceeding No VG 459 of 1988
B. 1. Interlocutory orders and undertaking
As is apparent from the pleadings in application No VG 195 of 1993 the facts relevant to the motions are not, really, in dispute. The statement of claim is a lengthy and detailed document. The defence, obviously drawn by Mr McFadyen, is very short. It admits certain paragraphs of the statement of claim and denies others. The admissions cover most of the facts relevant to the motions. On 23 December 1988, Mary-Anne Fahey, Trevor Young and Media Arts Corporation Pty Ltd, which company will be referred to in these reasons as "Corporation", commenced proceeding No VG 459 of 1988 against Stephens Publishing claiming that Stephens Publishing had published, sold and distributed and intended to continue to publish sell and distribute a book known as "Kylie Mole's School Survival Planner" ("the Planner"). The Planner was based upon the character of Kylie Mole appearing in a television programme and which had been created by Ms Fahey, who, at all material times, was married to Mr McFadyen. In the television programme Ms Fahey played the part of Kylie Mole.
The applicants in this proceeding alleged that Stephens Publishing had printed and published the Planner in a form which had not been consented to or approved by Ms Fahey and Mr McFadyen as required by the terms of an agreement entered into between Mr Young, Ms Fahey and Corporation of the one part and Stephens Publishing of the other part in September 1988. By way of interlocutory relief, the applicants to the proceeding sought two orders namely, 1. that until the hearing and determination of the proceeding Stephens Publishing be restrained from distributing or selling the Planner and 2. a mandatory order that Stephens Publishing take all steps to recover all Planners already distributed by them. The claims for the interlocutory relief came on for hearing before the Court constituted by Sweeney J on 23 December 1988. At that hearing the parties were represented by counsel.
Following submissions and the hearing of some evidence and following questions from the Court, counsel for Stephens Publishing said that subject to the then applicants giving the "usual undertaking as to damages" Stephens Publishing would undertake not to distribute or sell the Planner without the consent of the applicants. Thereupon counsel for the applicants gave the "usual undertaking as to damages". Thereafter, further submissions were made and further evidence was led with respect to the second interlocutory order sought by the applicants. The Court refused to make the second order. The Court then concluded the hearing by saying, in substance, that Stephens Publishing, by their counsel, having given the undertaking just referred to and that the applicants, by their counsel, having given the usual undertaking as to damages, the Court would adjourn the directions hearing in that proceeding to 14 February 1989 and reserve costs.
In its context, the phrase "usual undertaking as to damages" is an undertaking to pay to any party adversely affected by an interlocutory injunction or undertaking such compensation (if any) as the Court thinks just, in such manner as the Court directs. Normally, any order entered after this undertaking has been given, sets out the whole of the terms of the undertaking not merely the words "the usual undertaking as to damages". This was not done in this case but nothing turns upon that fact.
It is noted that the interlocutory order made on 23 December 1988 was entered on 14 February 1989. The order as entered was different in form to that announced in Court. The order was in the form of an interlocutory injunction, not an undertaking by Stephens Publishing. For the purposes of the present claims, the Court accepts the fact that Stephens Publishing gave the undertaking referred to above.
B.2.The orders in proceeding No VG 459 of 1988
Application No VG 459 of 1988 came on for hearing on 6 March 1989 before the Court constituted by Sweeney J. The hearing extended over several days and concluded on 8 May 1989 when the Court reserved its decision. On 27 July 1989 the Court ordered that the application be dismissed with costs and released Stephens Publishing from the undertaking given on their behalf on 23 December 1988. The costs so ordered to be paid to Stephens Publishing have been paid. A reference to the reasons for judgment shows that the Court considered the issue of liability only and in particular whether permanent injunctions should be granted. The Court also made the following declaration:
"The Court declares that the applicants are liable to pay to the respondents the damages suffered by them by reason of giving that undertaking and directs that the amount which the applicants shall be ordered to pay shall be ascertained by the Registrar in accordance with Order 38."
The reasons for decision do not make any reference to why this declaration was made. Normally in cases of this kind no similar declaration is made, see Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 116. If any party adversely affected by the interlocutory injunction or undertaking seeks compensation, that party normally proceeds by way of motion in the action in which the undertaking was given; see Air Express Limited v Ansett Transport Industries (Operations) Property Limited (1981) 146 CLR 249. In that matter Air Express claimed against Ansett damages pursuant to an undertaking given by Ansett to the Court to "abide by any order which the Court or a Justice may make as to damage in case the Court or a Justice shall hereafter be of the opinion that the defendants shall have sustained any damage, by reason of this Order, which the plaintiff ought to pay", see per Aickin J at 251. The matter came before the High Court by notice of motion in the matter referred to in 139 CLR by which Air Express sought an order that there be an enquiry as to whether it had sustained any damage by reason of the interlocutory injunction given against it and which Ansett ought to pay in accordance with the undertaking given by Ansett, see per Aickin J at 254. Aickin J held Air Express was not entitled to any damages. Air Express appealed to the Full Court of the High Court which, by majority, dismissed the appeal. The reasons for judgment of the Full Court follow immediately the reasons of Aickin J, the trial judge, in 146 CLR at 306. The heading in 146 CLR is taken from the appeal documents which explains why the name of the matter before Aickin J differs from that appearing in 139 CLR.
The declaration made by the Federal Court on 27 July 1989 includes the words "and directs that the amount which the applicants should be ordered to pay shall be ascertained by the Registrar in accordance with Order 38". This direction was given before Stephens Publishing had made any claim against the applicants who had given the "usual undertaking as to damages". Order 38 has a limited application. Rule 1(1) provides:
"1(1) Where:
(a)a respondent admits liability on an applicant's claim, but denies liability to the extent of the damages claimed; or
(b)the Court finds that the party is liable to pay damages;
the Court, if it considers that the amount of damages to be recovered is substantially a matter of calculation, may direct that the amount which the party liable shall be ordered to pay be ascertained by the Registrar at the proper place."
The purpose of this rule is to confer a power on the Registrar to exercise a judicial power of the Court. The relevant condition precedent to the application of Rule 1 namely, where "the Court finds that the party is liable to pay damages" had been stated in the first part of the order of the Court but at a time before Stephens Publishing had made a claim for damages. Nevertheless the order was made.
B. 3. Relevant steps taken after orders made on 27 July 1989
It should be noted that delays occurred after the orders were made on 27 July 1989. The solicitors then acting for Stephens Publishing should have caused notice of a motion to be given to the applicants in matter No VG 459 of 1988 seeking an order that the Registrar inquire whether the respondents had sustained any and what damage by reason of the undertaking given by them on 23 December 1988 which the applicants ought to pay in accordance with the undertaking given by them on the same date. Order 19 rule 1 of the Federal Court Rules provides:
"1(1) Any interlocutory or other application in any proceeding which has already been commenced in accordance with these Rules shall be made by motion.
The motion shall be supported by affidavit setting forth the facts relied upon.
Such application may be made to the Court or a Judge."
The other rules of Order 19 would have applied with respect to any motion brought by Stephens Publishing but they would have remained respondents in the matter No VG 459 of 1988. Having regard to the direction given in the declaration made by the Court on 27 July 1989, the motion should have been made returnable before the Registrar.
The first formal document by which Stephens Publishing claimed damages pursuant to the undertaking given by the applicants in matter No VG 459 of 1988, was not filed in the Court until 23 April 1990, some nine months after the order of 27 July 1989. The nature of the document was curious. It was in a form provided for an originating document in conformity with Order 4 of the Federal Court Rules and with Form 5 of those Rules, but it was not given a separate identifying number as required by Order 1 rule 6. It was given the identifying number VG 459 of 1988 but identified the parties as follows:
"BETWEEN:
STEPHENS PUBLISHING PTY LTD AND FILM
AND BOOK PUBLISHING PTY LTD
Applicants
AND:
MARYANNE FAHEY, MEDIA ARTS CORPORATION PTY LTD
AND TREVOR YOUNG
Respondents"
The document was headed "Application" and continued:
"On the grounds appearing in the accompanying Statement of Claim for Damages the Applicants claim damages to be assessed in accordance with Order 38 pursuant to the Order of His Honour Mr Justice Sweeney made 27 July 1989."
In conformity with a normal application under Order 4, the application identified a time and place for a directions hearing in the application and directed that the "respondents" attend that directions hearing and file an appearance before that directions hearing. The normal warning was given that if the "respondents" did not attend the directions hearing the matter could be dealt with in their absence. By their application and "statement of claim for damages", the "applicants" claimed damages in the sum of $643,557.44 pursuant to the orders of 27 July 1989:
"whereby it was ordered that pursuant to Order 38 of the Federal Court Rules there be an assessment of the damages sustained by the applicants by reason of the undertaking given by them to the Court on 23rd December 1988"
This document was most confusing. One identifying number applied to two separate applications. In one the applicants were said to be Ms Fahey, Corporation and Mr Young while in the other they were said to be the respondents. In the first the respondents were said to be Stephens Publishing Pty Ltd and Film and Book Publishing Pty Ltd while in the other they were said to be the applicants.
B. 4. Steps taken in the "application" by Stephens Publishing
Further delays occurred in the prosecution of the "application" by Stephens Publishing. On 17 October 1990 the Court constituted by Sweeney J ordered that Ms Fahey, Corporation and Mr Young pay to the "applicants" the sum of $23,000 in part satisfaction of the damages arising from the undertaking. This amount was paid. On 5 August 1991, the "damages application" came on for hearing before the Court constituted by Sweeney J. On 15 November 1991 the Court made orders on the "application" and published its reasons for making those orders. The orders relevant for present purposes are set out but it should be noted that the order that was entered was in proceeding VG 459 of 1988 in which Ms Fahey, Corporation and Mr Young were named as applicants and Stephens Publishing were named as respondents:
"1.The applicants pay to the Respondents the sum of $201,637.86 plus interest in the total sum of $77,511.82.
2.The Applicants pay the Respondent's costs of the Application filed by the Respondents on 23 April, 1990, including all reserved costs.
3.The sum of $10,000.00 paid into Court by the Applicants be paid out to the Solicitors for the Respondents in part satisfaction of the amounts ordered to be paid in paragraph 1 hereof.
.....
5.There be a stay of execution of paragraphs 1, 2 and 4 of this Order for twenty-one (21) days."
It is noted that the total amount of the judgment was $279,147.68 but the amount was to be reduced to $269,147.68 after deduction of the $10,000. The earlier payment of $23,000 had been taken into account.
B. 5. The appeal
On 4 December 1991 Ms Fahey and Corporation filed a notice of appeal against the orders made on 15 November 1991. The appeal was proceeding VG 374 of 1991. By motion, notice of which was dated 28 January 1992, Stephens Publishing sought an order for security for their costs of the appeal against Ms Fahey and Corporation. By notice of discontinuance dated 28 February 1992, Ms Fahey and Corporation abandoned their appeal in proceeding VG 374 of 1991. Stephens Publishing's costs of the appeal have not been paid.
B. 6. Additional relevant facts
On 4 May 1992, Corporation was wound up on the application of Stephens Publishing. Ms Fahey and Mr Young have paid $30,000 and $10,000 respectively to Stephens Publishing in part satisfaction of the orders made by the Court on 15 November 1991. Stephens Publishing have released them from any further liability under those orders.
Neither the costs ordered to be paid to Stephens Publishing by the Order of the Court of 15 November 1991 nor the costs to which Stephens Publishing are entitled by reason of the discontinuance of the appeal have been taxed. Stephens Publishing have released Ms Fahey and Mr Young from any liability to pay these costs. The liquidator of Corporation has no assets to pay those costs. Hence the motions for orders that Mr McFadyen pay those costs.
B. 7. The basis for the claims made in support of the motions:
Mr McFadyen was not a party in proceeding No VG 459 of 1988. At all relevant times Ms Fahey and Mr McFadyen were directors of Corporation. On all the evidence, it is clear that Mr McFadyen was, in fact, the person who controlled Corporation. He made the decision to defend the "application" by Stephens Publishing for the assessment of damages. In fact, the amount claimed by way of damages was of the order of $643,000 but the amount awarded was about one third of that amount.
There is no doubt that the power conferred on the Court by section 43 of the Federal Court of Australia Act 1976 enables the Court to order that a non party to litigation pay costs to a successful party; see, for example, Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224. This power is similar to powers conferred by other statutes and rules of court applicable to proceedings in other courts. Very helpful considerations of the history and nature of the power appear in Knight v F P Special Assets Ltd (1992) 174 CLR 178 in the joint judgment of Mason CJ and Deane J and in the judgment of Dawson J. Those judgments refer to the analogous power of the court to order a plaintiff to give security for costs when contrasted with the power to make an order against a non party.
In the present case, counsel for Stephens publishing contended that Corporation had no assets, that in substance it was a "man of straw", that the application was brought by Mr McFadyen who played an active role in the proceedings for the assessment of damages and had an interest in that litigation and that, in the interests of justice, he should be required to pay the costs awarded in favour of Stephens Publishing.
The Court, as presently constituted, considered the relevant principles to be applied in cases of this kind in reasons for judgment in Morey v Transurban City Link Ltd (No VG 124 of 1996) 7 February 1997, unreported.
B. 8. Conclusions
In my opinion, these principles have no application to the motions presently before the Court. In summary, Corporation sought interlocutory and permanent injunctions against Stephens Publishing. Upon undertakings as to damages being given, Stephens Publishing gave undertakings in the nature of consenting to interlocutory injunctions pending the hearing of the application. In due course, the Court dismissed the application for permanent injunctions. Stephens Publishing then moved the Court for orders that Corporation, together with Ms Fahey and Mr Young, pay damages suffered by Stephens Publishing by reason of the undertaking given by them. In reality, Stephens Publishing were plaintiffs in the claim for damages.
Counsel for Stephens Publishing could refer the Court to no authority which supported the proposition that a defendant should give security for costs to a plaintiff in a case where the plaintiff is suing the defendant for damages. This is not surprising, since in each case, the person entitled to security for costs must be in a position of a defendant opposing a claim brought by a corporation or a natural person where justice requires security for costs to be given ;see the discussion relating to the various sources of power to make orders for security for costs appearing in Microcorp Pty Ltd v Terran Computers Pty Ltd (No. VG 258 of 1992, unreported).
The true position is illustrated by Willey v Synan (1935) 54 CLR 175. There, the appellant was a seaman who found silver coins on a ship. The customs authorities in Australia seized the coins and gave notice to the appellant that unless he commenced action to recover the coins, they would be condemned to the Commonwealth. The appellant, as plaintiff, commenced proceedings in the High Court. Starke J ordered that security be given on the basis that the plaintiff resided outside Australia. The Full Court unanimously allowed an appeal from that order. The legal principle was stated by McTiernan J at 187:-
"I agree that this appeal should be allowed. The action in which the appellant has been ordered to give security for costs was entered by him in response to a notice served on him by the defendant pursuant to sec.207 of the Customs Act 1901-1930. The action was truly instituted by way of defence to a claim by the Collector of Customs for the condemnation of the appellants' goods.
Certain silver coins claimed by the appellant to be his goods, which form the subject matter of the action, had been seized by the Collector of Customs, who initiated proceedings for their condemnation by giving the notice provided for by s 207.
The rule that a plaintiff who is out of the jurisdiction should give security for costs should not be applied to the plaintiff in this action for the reasons stated by Scrutton L.J. in Maatschappij voor Fondsenbeit v Shell Transport and Trading Co. (1923) 3 K.B., 166 at 176, 1977."
Latham CJ at 170-180 quoted Scrutton LJ in that authority as saying:
""[The Court]" orders security for costs against the foreign attacker, not against the foreigner defending himself or his property from attack."
Dixon J said at 174:
"The principle is that a party to judicial proceeding, who resides beyond the jurisdiction, should not be required to give security for costs unless, however the parties are arranged upon the record, he is the person invoking or resorting to the jurisdiction for the purpose of establishing rights or obtaining relief. If he does avail himself of the remedies the jurisdiction provides in order to obtain affirmative relief or redress, he may be ordered to give security, although he becomes a defendant in the section."
His Honour then referred to a number of authorities including the following extract from the judgment of Scrutton LJ at 177:
"The position, I think, extends to every case where the person against whom security is sought is really defending himself against attack, even if he be nominally a plaintiff but really defending himself against defendant's previous action against him."
In my opinion a similar principle applies with respect to the power to order a non-party to pay the costs of a successful party. This power, for relevant purposes, is analogous to the power to order security for costs. Where a party is attacking another party to recover damages, the Court should not order that a third party, directing the attacked party, should pay the costs of the attacker on the basis that the attacked party has no assets.
Accordingly, the two motions of Stephens Publishing should be refused with costs.
C. Proceeding VG 195 of 1993
C.1.Introduction
This proceeding was commenced on 19 May 1993. Originally Stephens Publishing sought damages for fraudulent misrepresentation, for conspiracy and under the Trade Practices Act 1974. Following orders made by the Court on 31 March 1994 and 24 November 1994, the application for damages was limited to two causes of action, in substance those mentioned in paragraphs 1 and 2 of the application as set out in these reasons. At the hearing, leave was granted to amend the application to make the claims 1, 1A and 2 as so set out. During the course of the hearing leave was granted to amend the statement of claim. Paragraphs 42A and 42B were inserted to give rise to the claim 1A which is an alternative to claim 1. Other minor amendments were made. Mr McFadyen denied the allegations contained in paragraphs 42A and 42B of the statement of claim.
The claims as pursued give rise to matters which normally would be heard in the State Courts. It is unfortunate that they were not. Having regard to the history of the litigation there can be no doubt that this Court has jurisdiction to hear and determine the application. When the matter came on for hearing, it was too late to cross-vest it to the Supreme Court of Victoria.
C. 2. The pleadings
The statement of claim is a long and complex document containing over 43 paragraphs. The defence is simple. Mr McFadyen admits most of the allegations contained in the statement of claim but denied the allegations of an agreement arising out of the giving of the undertaking by Corporation in proceeding No VG 459 of 1988 and the other allegations directed to the intentions, purposes, motives or knowingly acting, express or implied, necessary to be established for Stephens Publishing to succeed. Thus Mr McFadyen admitted paragraphs 1 to 2, 4 to 8, 12 to 30, 32 and 33 of the statement of claim.
A reference to the allegations which were denied by Mr McFadyen illustrates the issue between the parties. Paragraph 3 of the statement of claim alleges that at all relevant times he had been and at the date of the statement of claim (in 1995) was a director and shareholder of Corporation. Having regard to the facts that Corporation was incorporated under the name Shermist Pty Ltd in the early 1980's but was wound up by order of the Court on 4 February 1992, the denial is understandable. At the same time Mr McFadyen admits the allegations in paragraph 8 of the statement of claim that at all material times Corporation was effectively controlled by him and Ms Fahey. The Court finds that at all material times to 4 February 1992 Mr McFadyen controlled the affairs of Corporation.
Paragraphs 9, 10 and 11 of the statement of claim contain allegations of facts suggesting the existence of an agreement or contract between Corporation and Stephens Publishing arising during the course of the hearing for the motion for interlocutory relief in proceeding No VG 459 of 1988 which took place on 23 December 1988. The paragraphs allege an agreement by Corporation to give "the usual undertaking as to damages" and Stephens Publishers agreed to give the undertaking not to distribute the Planner. The paragraphs allege a number of implied terms of that agreement. The existence of the agreement and the implied terms form the foundation of the claim by Stephens Publishing for damages for wrongful procurement of breach of contract, alternatively for damages for wrongful procurement of breach of an equitable duty.
Paragraph 31 alleges that Stephens Publishing gave the undertaking on 23 December pursuant to the agreement referred to in paragraphs 10 and 11. This is denied.
Paragraphs 34 to 42B of the statement of claim set out the allegations supporting the causes of action relied on by Stephens Publishing. Each of these allegations is denied. Paragraph 35 alleges that Mr McFadyen "procured and assisted" Corporation to cease trading and to cause it to transfer its assets to Media Arts Productions Pty Ltd ("Productions"), a company controlled by him thereby causing Corporation to become unable to pay the damages awarded in favour of Stephens Publishing and to breach the agreement between Corporation and Stephens Publishing. Paragraph 35 alleges that subsequently to 23 December 1988 Mr McFadyen "caused" Corporation to breach the implied terms of the agreement. A number of particular events are identified including an allegation that Corporation "disposed of its assets with the predominant purpose of depriving (Stephens Publishing), of the opportunity to obtain satisfaction of any order which the Court may have made pursuant to the damages undertaking".
Paragraph 36 is similar in form but relates to the period 27 July 1989 to 31 May 1992. It alleges Mr McFadyen conspired with Corporation and Ms Fahey "with the predominant purpose of causing injury to (Stephens Publishing) by depriving them of the capacity to obtain satisfaction of any order which the Court may have made pursuant to the damages undertaking" to cause Corporation to breach its undertaking and agreement and to render it unable to comply with the undertaking and agreement.
Paragraph 37 is in similar form but alleges that pursuant to the conspiracy, Mr McFadyen "knowingly and wrongfully induced and assisted (Corporation) and Ms Fahey to undertake, or cause to be put in place, (specified transactions) with the predominant intention that (Corporation) would be permanently unable to comply with the damages undertakings". The matter is taken further by paragraph 38 which alleges that specified transactions were predominantly intended to defeat, and did have the effect of defeating, the claim by (Stephens Publishing) to recover damages from Corporation and Ms Fahey. Paragraph 39 is supplementary to earlier allegations.
Paragraph 40 alleges that during the period of the conspiracy Mr McFadyen, as a director of Corporation, and on behalf of Ms Fahey, and as part of the conspiracy deceived and misled Stephens Publishing by not making disclosure of specified matters to them or to the Court.
Paragraph 41 alleges damages resulting from the matters referred to in paragraphs 36 to 42 (in reality this should have been paragraphs 34 to 40).
Paragraph 42 refers to paragraphs 1 to 35 and 37 to 38 and alleges that Mr McFadyen well knew of the agreement "and with intent to injury (Stephens Publishing) procured and induced Corporation to breach the agreement".
Paragraph 42A alleges that by reason of the matters alleged in paragraphs 1 to 35 and 37 to 40 an equitable right was created in favour of Stephens Publishing to the benefit of the undertaking with corresponding rights to them to enforce the undertaking. Paragraph 42B alleges that Mr McFadyen "well knowing of the said equitable and legal rights and the said equitable duty procured and induced (Corporation) to breach" those rights by placing Corporation in a position where it had no assets to pay the damages awarded against it.
Despite the wide ranging admissions, the hearing of the application and the motions in application No VG 459 of 1988 extended over 9 sitting days even though the estimate given for the hearing was 3 days only.
C. 3. Nature of evidence
In support of the claim by Stephens Publishing, their counsel relied on evidence to support the finding that the acts and events referred to in the statement of claim did happen. It was then argued that those acts and events by implication or by inference supported the allegation that Mr McFadyen had the relevant knowledge, intentions, purposes or motives alleged in the statement of claim. Unless the knowledge, intentions, purposes or motives were proved, the claims by Stephens Publishing had to fail irrespective of what were the general legal principles of law supporting the causes of action. As was said by the Court during the hearing of the application, the success of the case depended upon what could be described as circumstantial evidence.
An issue in all the claims was the state of mind of Mr McFadyen when he caused certain actions to take place. As is clear from the statement of claim, the state of mind of Mr McFadyen was a fact to be proved. Stephens Publishing has the onus of proving the state of mind alleged. Proof of that state of mind relies on the establishment of a set of circumstances which are then said inferentially to support a finding that the relevant state of mind existed. Evidence of facts which inferentially leads to such a conclusion is often described as circumstantial evidence; compare 15 Halsbury's Laws of England 3rd Ed. 263. As appears in Cross on Evidence, Fourth Australian Edition, para 1100, circumstantial evidence may ".... be defined as any fact (sometimes called an "evidentiary fact", factum probans or "fact relevant to the issue") from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called a "principal fact" or factum probandum)."
During the course of the hearing, the Court drew to the attention of counsel for Stephens Publishing the fact that a large part of the case sought to be made by Stephens Publishing depended upon circumstantial evidence. Mr McFadyen gave evidence denying the existence on his part of the knowledge, intentions, purposes or motives alleged against him. In those circumstances the Court drew to the attention of counsel for Stephens Publishing the importance of the credibility of Mr McFadyen as a witness. Mr McFadyen admitted most, if not all of the events and acts alleged by Stephens Publishing but denied he had the requisite knowledge, intentions, purposes or motives alleged by Stephens Publishing. If the Court accepts the evidence of Mr McFadyen, the application must be dismissed. In his final submissions, counsel for Stephens Publishing made a strong attack on the credibility of Mr McFadyen.
Before turning to the relevant facts, it will be helpful to make a brief reference to the stage setting in which the drama took place.
C. 4. The stage setting
At the time of the hearing, Mr McFadyen was 47 years of age. He had qualified as a psychologist, teacher and criminologist. He obtained academic qualifications at the University of Melbourne namely Bachelor of Arts, Bachelor of Education and Diploma of Criminology. The Diploma was awarded in the Faculty of Arts. He had no training in law, commerce or accounting. After graduating he worked as a psychologist and teacher for short periods. He was unable to obtain employment as a criminologist. He worked for a period as a social worker.
After working for several years as a social worker and teacher, Mr McFadyen decided to devote all his time to being a writer, a director of productions and an actor. This was about 1973 when he was in his mid-twenties. For some two years in 1977 and 1978 he was employed in a salaried position in the ABC as a television producer but apart from that period his income was received from his activities as an actor, a writer and a director and producer of television programs. On the advice of his accountant, Mr McFadyen decided to organize his business affairs through a family trust arrangement. One purpose of doing this was to distribute income derived from his activities among beneficiaries under the trust.
The family trust was created by a deed of settlement dated 16 March 1982 entered into between Eve Francis Ash as Settlor and Shermist Pty Ltd as trustee. Shermist was controlled by Mr McFadyen. On 2 September 1986 Shermist Pty Ltd changed its name to Media Arts Corporation Pty Ltd. In these reasons the name "Corporation" is used to include Shermist Pty Ltd. The deed of settlement was in a common form. The beneficiaries were members of the family of Mr McFadyen. The plan was that Mr McFadyen provided his services to the trust and Corporation, as trustee, who provided those services to other persons for a fee.
Ms Fahey is an actor and writer. She and Mr McFadyen often worked together writing television scripts and as actors. In 1985 Ms Fahey and Mr McFadyen married and thereafter Ms Fahey lent her services to the trust and all fees arising from their work, both joint and individually should have been paid to Corporation which employed them.
Between 1982 and 1987 Corporation did not act as a production company producing television programs. It acted as a provider of services, namely the services provided by Ms Fahey and Mr McFadyen, to separate production companies. It owned interests in production companies which were set up from time to time for the purposes of producing shows. Two such companies were Comedia Ltd and Eleventh Hour Productions Pty Ltd. The production companies paid Corporation fees for services provided by Ms Fahey and Mr McFadyen. Corporation was the group employer and paid a salary to each of Ms Fahey and Mr McFadyen. This was a structure not at all uncommon in business.
In 1987 Network Ten (Aust) asked Mr McFadyen to produce a series of ten one hour sketch comedy programs for presentation on Channel 10. Mr McFadyen says that at the time he did not have the money nor the time to incorporate a production company for the purpose of producing the programs. He decided to use Corporation as the production company. Corporation engaged staff and entered into contracts with other persons including actors and writers for the purpose of producing the programs. The program series was called "The Comedy Company". Mr McFadyen claimed the series became the most successful comedy program on Australian television in 1988. Its ratings were exceeded only by the televising of the VFL Grand Final game.
Ms Fahey and Mr McFadyen were two of the three main script writers for the series. Ms Fahey and Mr McFadyen appeared as actors in the series. Mr McFadyen was the script editor, executive producer and co-director. Two further series of ten episodes were commissioned by the network in 1988. Mr McFadyen was extremely busy at this time. He was writing, directing and producing a very successful television program. Corporation was riding a wave of financial prosperity. Mr McFadyen was not giving sufficient time to the financial structures of Corporation. This was a common feature in the heady days of the latter half of the 1980's. Entrepreneurs were being given star treatment. Some were being feted by high dignitaries within Australia. The looming financial collapse was not foreseen.
The Comedy Company series comprised a number of segments. One of the most popular segments involve a schoolgirl character called "Kylie Mole". This character had been created by Ms Fahey. She wrote the script of this segment and played the part of Kylie Mole. The character and name of Kylie Mole was sought by many commercial interests for use in selling their merchandise. Kylie Mole had a cult following. To assist in utilising this activity, Corporation engaged Mr Trevor Young to act on behalf of the Corporation. It was one of the commercial agreements which formed the basis of the action against Stephens Publishing in proceeding VG 459 of 1988 which was commenced in December 1988. It involved disputes relating to copyright and the licence to use the book known as "Kylie Mole's School Survival Planner". The claim for an interlocutory injunction came on for hearing on 23 December 1988. This matter is referred to earlier in these reasons. That was the day that Corporation gave the usual undertaking as to damages in return for the undertaking by Stephens Publishing not to distribute the Planner.
On all the material before it, the Court finds that at the time the undertaking was given by Corporation, it had the capacity to pay any damages which the Court may have directed it to pay. Corporation was producing a very successful series. It appeared to be in a sound financial position. Sufficient attention was not being given to the financial structures of Corporation and its activities but it had the assets and the cash flow to pay damages. Mr McFadyen was out of his depth in financial matters. He was extremely busy. He did not give the required consideration to the need to base the structures of Corporation on a solid foundation. He did not seek financial advice. He considered the good times would continue. Like many others he did not give sufficient thought to the future. It must be remembered that Corporation was providing a service. This was not a case of producing nothing of substance. A popular service was being provided to the public. Corporation was a very successful company. The Comedy Company was a very successful production. Kylie Mole was a very successful and valuable character. This can be illustrated by Stephens Publishing using the character in the Planner and its claim for damages of over $630,000.00 arising from its undertaking not to distribute or sell the Planner.
C.5.The credibility of Mr McFadyen
Mr McFadyen gave evidence. He was cross-examined. He made submissions to the Court. He participated in the hearing before the Court over 9 days. The Court had ample opportunity to observe Mr McFadyen, to assess his honesty and to determine whether his evidence could be accepted. This last aspect is crucial. He has explanations for all of the actions relied upon by Stephens Publishing to establish their case. If the explanations given by Mr McFadyen are accepted, the Court should not make the inferences sought to be established by Stephens Publishing and as alleged in the statement of claim.
Mr McFadyen presented as a very able and articulate person. He had an exceptional memory of events, both recent and in the far distant past. It must be remembered that he is a script writer and an actor. As a script writer he could prepare a script to exculpate him from the claims made by Stephens Publishing. As an actor he would be able to remember the lines of that script as well as ad libbing where required. This could detract from the finding that he was a witness of truth. At the same time these skills should not be used as a reason for not accepting him as a witness of truth.
Mr McFadyen was subjected to a long and vigorous cross-examination. His responses were remarkably direct, open and honest. Generally speaking, he did not try to deny or hide events which had occurred and which formed the basis for the inferences sought to be relied upon by Stephens Publishing. It was the alleged motives or purposes of those actions which were denied. The evidentiary facts, (the factum probans or "facts relevant to the issue") were not disputed. Much time was wasted in cross-examination on these facts when it was apparent that those facts were not in dispute. Mr McFadyen coped with this aspect of the cross-examination with great equanimity.
Many documents were put to him relating to far distant facts. Generally, these documents supported the evidence he had given. Where they apparently did not, his explanations appeared to be genuine and reasonable. In this regard reference can be made to the cross-examination based on a journalist's article appearing in the New Idea. If anything, his answers and explanations, expanded in re-examination, confirmed that he should be accepted as a witness of truth.
His evidence must be considered in the context of the facts referred to in the paragraph of these reasons headed "The stage setting". The setting changed dramatically commencing in late 1989, in 1990 and in 1991. The financial bubble burst. The financial success of The Comedy Company and related programs disappeared. Corporation lost its cash flow following the collapse of the Channel 10 Network. The collapse of property values in 1991 had a dramatic effect on the financial position of Ms Fahey and Mr McFadyen and of Corporation. All these facts support the explanations given by Mr McFadyen. He was caught up in a web over which he had no control. He was doing his best, sometimes on dubious advice, to extricate himself, his wife and Corporation from that web.
Additional settings of the stage relate to the facts that Corporation (for itself, Mr Fahey and Mr Young) paid the costs awarded against the applicants by the Court in its Order of 27 July 1989 in proceeding No VG 459 of 1988. Corporation for itself and the other applicants paid the $23,000.00 directed to be paid to Stephens Publishing by a consent order of the Court, made on 17 October 1990, in the same proceeding. It is noted that this was a consent order. Regard is had to the fact that negotiations occurred between the then solicitors for Stephens Publishing and the solicitors for Corporation for the compromise of the damages claim by Stephens Publishing. The details of these negotiations are not before the Court. They were unsuccessful but subsequently Corporation on its behalf and on behalf of the other applicants paid $10,000 into Court in that proceeding.
The evidence of Mr McFadyen must be considered having regard to all these matters, the financial difficulties affecting Mr McFadyen, Ms Fahey and their companies during the period 1990 to 1992 and the inherent likelihood or otherwise of Mr McFadyen intentionally taking the steps and actions which are not in dispute for the purpose or with the motive or intention of preventing Stephens Publishing obtaining the benefit of the judgment obtained against Corporation. All this is in the context that Mr McFadyen gained no personal financial benefit from the actions.
In all the circumstances, the Court finds that Mr McFadyen was a witness of truth whose evidence should be accepted. In particular, the Court accepts his denial that the actions he took were intended to prevent or were done knowingly or for the purpose or with the motive of preventing Stephens Publishing being able to recover the damages from Corporation. This does not prevent the Court from not accepting parts of that evidence but the overall result is that the Court accepts the explanations given by Mr McFadyen and rejects the inferences sought to be relied upon by Stephens Publishing. This finding does not carry any implication that the actions of Mr McFadyen have the approval of the Court.
C. 6. Summary of evidentiary facts subsequent to 23 December 1988
Having formed the view that Mr McFadyen was a witness of truth, it is not necessary to refer in detail to all the evidentiary facts which are relied upon by Stephens Publishing as the basis for the drawing of the inferences on which their claim depends. A number of those facts have been set out in these reasons relating to the motions in proceeding No VG 459 of 1988. The other evidentiary facts will be given in a summary form together with some comments. In that part of these reasons under the heading "C. 7. Extracts from transcript of re-examination of Mr McFadyen" there is set out parts of the transcript of the hearing from pages 486 to 494. These are taken from the re-examination of Mr McFadyen as a witness. Some parts of the transcript appear to be in the nature of submissions but this results from the difficulties arising where a litigant appears in person. No weight is given to those matters based on the fact that they were given on oath. They are not treated as fact. At the same time a statement relating to state of mind is a statement of fact and can be a "principal fact" or "factum probandum". The purpose of setting out the extracts from the transcript is to summarize the evidence of Mr McFadyen on the issue of his knowledge, intention, purpose and motive and his state of mind, in rebuttal of the inferences sought to be relied upon by Stephens Publishing. To that extent the evidence constitutes evidence of a principal fact. The Court accepts as true the evidence of Mr McFadyen on these principal facts.
By the end of the year 1988, it was becoming obvious to Mr McFadyen that it was impractical to continue to use Corporation as a production company. Practical considerations required a change of structures by which Ms Fahey and Mr McFadyen conducted their activities as writers, actors, producer and director. Corporation was intended to be used as the trust company in connection with the McFadyen Family Trust. Mr McFadyen had used other companies for other purposes. These other companies paid Corporation for services provided by Ms Fahey and Mr McFadyen. The reason why this was not done with respect to The Comedy Company is explained earlier in these reasons. The difficulties with the existing structure were described by Mr McFadyen as severe drawbacks and were set out as follows:
"a)We could not easily take on partners, or sell the company or any part of it.
b)Profits could not be retained but had to be distributed annually.
c)There was no clear separation between operational profits and fees due to myself and Ms Fahey for our writing and performing. In 1988 and 89 Media Arts Corporation paid writing and performing fees to all the other performers in the program while fees due to Ms Fahey and myself were simply retained by the trust. Large profits made over the period were due to the fact that the accumulated revenue included fees which would normally have been paid to Ms Fahey and myself."
The extent to which other companies were created by Mr McFadyen to give effect to the structures of his activities pursuant to his policy are set out in these reasons under the heading "C. 7. Extracts from transcript of re-examination of Mr McFadyen".
Towards the end of 1988 Mr McFadyen decided that a new company should be incorporated to become the production company after the current Network Ten contracts had been completed. Corporation was to remain as the trust company. Of immediate importance was the need to distribute the profits of Corporation among the beneficiaries of the McFadyen Family Trust before the end of the financial year. Accordingly, a new company was incorporated by Mr McFadyen. The company was known as Greysville Pty Ltd. Greysville was incorporated in February 1989 and was made a beneficiary under the McFadyen Family Trust.
The profits of Corporation for the year 1988-1989 were large. Without allowing for tax, the profits appeared to exceed $600,000. Mr McFadyen planned to have Corporation distribute some of its profits to Greysville. Mr McFadyen caused Greysville to lend some of the money so received back to Corporation for specific purposes. In February 1989, from the moneys so lent to it, Corporation lent some $425,000 to Ms Fahey and Mr McFadyen to purchase a dwelling house at 47 Philipson Street, Albert Park. The purchase was by cash and the land was registered in the names of Ms Fahey and Mr McFadyen as tenants in common in equal shares. It was not mortgaged. They used it as their residence. Mr McFadyen was receiving advice from his accountant but the Court expresses no opinion on the value of that advice. The distribution of such a large sum to Greysville seems strange. It is not for the Court to decide whether, in all the circumstances, the purchase of the residence was a wise move. It must be remembered these were very heady and exciting times for Ms Fahey and Mr McFadyen. The Comedy Company was a great success. Corporation had a large cash flow and was making large profits. The future looked cosy. The future would look after itself.
In addition, Greysville lent some $100,000 to Corporation to enable Corporation to purchase office equipment including computers. As a result by March 1989 Corporation owed Greysville some $525,000 and Ms Fahey and Mr McFadyen owed Corporation some $425,000.
In May 1989 Greysville purchased a property at Bridport Street, Albert Park, as an office for Ms Fahey, Mr McFadyen and the companies controlled by Mr McFadyen. The purchase price was some $852,000. Greysville paid some $450,000 and borrowed some $450,000 from the ANZ Bank in order to complete the purchase. Greysville gave a mortgage over the Bridport Street office to the ANZ Bank by way of security for money owing to the bank.
It should be noted that all these transactions occurred before judgment was given on 27 July 1989 in proceeding No VG 459 of 1988. It should be noted further that judgment was given in the 1989-1990 tax year.
Corporation continued its activities as a producer during 1989. By the end of the year Corporation had cash reserves of about $400,000. Ms Fahey was pregnant. She could not continue to appear to act the part of Kylie Mole as well as other parts in other segments. Mr McFadyen decided he did not want to continue writing, producing and acting in The Comedy Company. Some difficulties had arisen between Corporation and persons engaged in The Comedy Company. Some were leaving or threatening to leave the program. In about October 1989 Mr McFadyen told Network Ten he would not produce The Comedy Company in 1990 but that he desired to develop and produce other programs. The Comedy Company continued to have high ratings. Network Ten desired to continue with The Comedy Company. Differences of opinion continued between Mr McFadyen and Network Ten. During 1990 Mr McFadyen was planning and developing other programs. He was attempting to sell existing copies of "The Comedy Company" programs to overseas television channels. He was unsuccessful in these attempts. In reality, Corporation had a very bad year in 1990. It received almost no income.
In January 1990 Ms Fahey and Mr McFadyen incorporated Media Arts Productions Pty Ltd ("Productions"). Productions was created to be the company used to produce all future television programs. It was to take over production activities from Corporation.
In April 1990, Stephens Publishing served on Corporation, Ms Fahey and Mr Young its claim for the $640,000 damages based on the undertaking they had given on 23 December 1988.
By the middle of 1990 Corporation had cash flow problems. It had no cash resources but assets in the form of moneys owing to it including money owing by Ms Fahey and Mr McFadyen. It had a number of debts including the moneys owing to Greysville and legal costs to its own solicitor with respect to the litigation. Greysville had been assessed for tax in the order of $390,000 for the year 1988-1989. It paid this tax by borrowing a further sum from the ANZ Bank. As security, the bank required further security. This was supplied by Ms Fahey and Mr McFadyen giving a mortgage in favour of the Bank over their residence at Philipson Street, Albert Park.
In an attempt to restore the financial position of Corporation and to resolve the existing financial problems. Mr McFadyen agreed with Network Ten to produce a new series of The Comedy Company. To give effect to this agreement, a number of separate agreements were entered into. Corporation assigned its property rights in the existing The Comedy Company programs and any copyright it had with respect to them to Publications for $100,000. Some dispute exists as to whether this was an appropriate amount but for present purposes that is of little moment. The $100,000 became a debt owed by Productions to Corporation but was off-set against moneys owing from Corporation to Productions. Corporation sold its office equipment to Productions for $60,000. Again disputes exist as to whether this was proper value but, for present purposes, nothing turns on that. Over a period of some months, most of this debt was paid by Productions to Corporation. Productions agreed with Network Ten to produce for Network Ten 18 one hour episodes of a new series of The Comedy Company. Corporation entered into an agreement with Network Ten to provide Mr McFadyen as a consultant with respect to the new series for which Corporation was to be paid $200,000 by Network Ten over an 18 month period.
As a result of these arrangements, as from the early part of the financial year 1990-1991 Productions was to produce The Comedy Company for Network Ten. Apart from the consultancy fees, Corporation was to receive fees payable to Ms Fahey and Mr McFadyen for the services they provided to Productions with respect to the programs. Productions was to pay Corporation from moneys received from Network Ten. Other activities of a lesser kind were entered into but these can be put to one side. The slump had ended. Good times lay ahead.
There followed the long delay in the hearing of the damages claim by Stephens Publishing. During this period Corporation paid the legal costs owing to its solicitors with respect to the proceeding No VG 459 of 1988. It paid to the then solicitors for Stephens Publishing the costs ordered to be paid by the orders of the Court 27 July 1989. It paid $23,000 to Stephens Publishing pursuant to the consent orders of 17 October 1990. It attempted, unsuccessfully, to negotiate a settlement of the claim for damages by Stephens Publishing. It paid the $10,000 into Court.
C.9.Conclusion
In the result, the application No VG 195 of 1993 must be dismissed with costs.
I certify that this and the previous
sixty (60) pages are a true copy of the
Reasons for Judgment of the Honourable
Justice R.M. Northrop.
Associate:
Date: 6 March 1997
ATTACHMENT
Counsel for the applicant Mr R Kendall
Solicitors for the applicant Stephens Solicitors
Counsel for the respondent Respondent appeared in person
Solicitors for the respondent Respondent appeared in person
Dates of hearing: 12-14, 18-20 March 1996, 15, 17, 23 April 1996
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