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Findex Group Pty Ltd v McKay

Findex Group Pty Ltd v McKay

Case [2023] ACTCA 36 22 September 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Findex Group Pty Ltd v McKay
Citation:	[2023] ACTCA 36
Hearing Date:	25 August 2023
Decision Date:	22 September 2023
Before:	Mossop, McWilliam and Taylor JJ
Decision:	See [230].
Catchwords:	PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal against
interlocutory decision of primary judge on an issue of practice and
procedure involving discretion – where appeal seeks to raise denial of procedural fairness and factual errors – reluctance of courts to grant leave to appeal interlocutory orders – where denial
of procedural fairness may have effect of occasioning substantial
injustice – leave granted
PRACTICE AND PROCEDURE – APPEAL – Appeal against
orders refusing leave to reopen decision following refusal of an
application to amend Statement of Claim – whether primary judge proceeded upon a misapprehension of the facts – whether there was a denial of procedural fairness – appeal allowed – matter
remitted
Legislation Cited:	Corporations Act 2001 (Cth) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 417, 501, 502, 504, 1613, 1720
Cases Cited:	Autodesk Inc. v Dyason (No 2) (1993) 176 CLR 300 Commonwealth v Davis Samuel Pty Ltd (No 12) [2020] ACTSC 312 Findex Group Limited v McKay [2022] ACTSC 192
Findex Group Ltd v iiNet Ltd (Application by ASIC)
[2017] NSWSC 853 Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2)
[2017] NSWSC 1048 Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 Findex Group Ltd v McKay [2019] NSWCA 93 Findex Group Limited v McKay (No 2) [2023] ACTSC 43
General Steel Industries Inc v Commissioner for Railways
(NSW) (1964) 112 CLR 125 Gray v Sirtex Medical Ltd [2011] FCAFC 40; 193 FCR 1 House v The King (1936) 55 CLR 499 In re the will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 In the Matter of Prime City Investments Pty Ltd [2012] NSWSC
1287
Liu v The Age Company Pty Ltd (No 2) [2015] NSWSC 276 Liu v The Age Company Ltd [2016] NSWCA 115; 92 NSWLR 679
McKay v Findex Group Limited; Findex Group Limited v McKay
[2023] ACTSC 58 McKay v Findex Group Limited [2022] ACTSC 191 McKay v Paule [2022] ACTCA 72 Notaras v St George Bank Ltd [2005] ACTSC 5; 157 ACTR 1 Paule v McKay [2020] ACTSC 145 Paule v McKay (No 2) [2022] ACTSC 190
Parties:	Findex Group Ltd (First Applicant)
Findex Services Pty Ltd (Second Applicant) Financial Index Australia Pty Ltd (Third Applicant)
Spiro Paule (Fourth Applicant)
Danielle Bartholomeusz nee Ludbey (Fifth Applicant)
Phillip Hart (Sixth Applicant) David McKay (Respondent)
Representation:	Counsel
M A Friedgut (Applicants) M Karam with H Rodgers (Respondent)
Solicitors
Harmers Workplace Lawyers (Applicants) Just Dispute Resolution (Respondent)
File Number:	ACTCA 19 of 2023
Decision Under Appeal:	Court: Supreme Court of the ACT
Before: McCallum CJ Date of Decision: 12 May 2023
Case Title:…

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.

Continue reading Findex Group Pty Ltd v McKay

Details

AGLC: Findex Group Pty Ltd v McKay [2023] ACTCA 36
Case: [2023] ACTCA 36
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application for leave to appeal by Findex Group Ltd and related entities (collectively, Findex) against an interlocutory decision of the primary judge. The dispute arose from Findex's attempt to reopen an earlier decision that refused their application to file a Further Amended Statement of Claim. The respondent, David McKay, a former employee, alleged that Findex had sent disparaging correspondence to clients.

The legal issues before the Court of Appeal were whether leave to appeal should be granted, and if so, whether the primary judge erred in dismissing Findex's application to reopen the earlier decision. Findex contended that they were denied procedural fairness in the handling of the reopening application and that the primary judge made factual errors in her decision, citing grounds that would constitute a substantial injustice.

The Court of Appeal granted leave to appeal, acknowledging the reluctance to interfere with interlocutory decisions but finding that the alleged denial of procedural fairness and potential factual errors could occasion substantial injustice. The Court reasoned that the primary judge may have proceeded on a misapprehension of the facts and that the appeal raised arguable points regarding procedural fairness.

The Court allowed the appeal and remitted the matter to the Supreme Court for further determination on whether Findex should be permitted to reopen the earlier decision.

Orders