Ivory v Telstra Corporation Limited

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

IVORY v TELSTRA CORPORATION LIMITED & ORS [2009] FMCA 227

BANKRUPTCY – Application for transfer to Federal Court to enable application to be heard with a jury.

PRACTICE AND PROCEDURE – Notice to Produce – application to set aside – test of apparent relevancy.

PRACTICE AND PROCEDURE – Case management – Court’s control over proceedings.

EVIDENCE – Admissibility of evidence – scandalous allegations – affidavits ordered to be sealed up and not opened without order of the Court – practice.

Bankruptcy Act 1966, s.30(3)

Federal Magistrates Act 1999, ss.18, 32
Federal Court of Australia Act 1976, s.32AB(8A)
Federal Court Rules, O14 R8, O33 R12, O46 R6
Federal Magistrates Court Rules 2001, rr.1.05(2), 2.08(2), 15.24(1), 15.24(2), 15.29, 15.29(2)

Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457
Telstra Corporation Ltd v Ivory [2008] QSC 123
Abram v Bank of New Zealand & Anor (1996) 18 ATPR 41-507
Neil v Nott (1994) 121 ALR 148
Re Allen (1903) 5 SR (NSW) 55
DJL v The Central Authority [2000] HCA 17 (2000) 201 CLR 226
Re Wakim; ex parte McNally (1999) 198 CLR 511
Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia (1991) 31 FCR 587
Re Shields; ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308
ANZ Banking Group Ltd v Menso [2006] FMCA 1522
Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147
Re Ox Operations Pty Ltd [2008] FCA 61
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Seven Network Ltd v News Limited (No. 11) [2006] FCA 174
In re J (an infant) [1960] 1 WLR 253
Re A Pty Ltd v B [1962] QWN 35
Rossage v Rossage [1960)] 1 WLR 249
Jones v Trinder, Capron & Co [1918] 2 Ch 7
Applicant: KENNETH CLYDE IVORY
Respondent: TELSTRA CORPORATION LIMITED & ORS
File Number: BRG 836 of 2008
Judgment of: Wilson FM
Hearing date: 6 March 2009
Date of Last Submission: 6 March 2009
Delivered at: Brisbane
Delivered on: 20 March 2009

REPRESENTATION

Counsel for the Applicant: N/A
The Applicant in person: Mr Ivory
Counsel for the Respondent: Mr Sullivan S.C.
Solicitors for the Respondent: Mallesons Stephen Jaques

ORDERS

  1. Each of the Notices to Produce filed 13 February 2009 and 2 March 2009 be set aside.

  2. The application in a case filed by the applicant on 2 March 2009 be dismissed.

  3. Those parts of the applicant’s material identified in the Schedule to the Reasons for Judgment are struck out, and each of the following documents will be sealed in an envelope and marked “Not to be opened without the order of the Court”:

    (a)Affidavit of applicant filed 18 November 2008;

    (b)Notice of Objection filed 24 November 2008;

    (c)Affidavit of applicant filed 24 November 2008;

    (d)Affidavit of applicant filed 4 December 2008;

    (e)Supplementary application filed 30 January 2009;

    (f)Affidavit of applicant filed 30 January 2009;

    (g)Affidavit of applicant filed 3 February 2009;

    (h)Affidavit of applicant filed…

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Details
Case
[2009] FMCA 227
Decision Date

CaseChat Overview and Summary

Ivory filed an application against Telstra Corporation Limited, seeking transfer of the matter to the Federal Court to facilitate a jury hearing. The dispute centred around the admissibility of certain evidence and the relevance of documents requested through notices to produce. The court was tasked with determining the relevance of the requested documents and whether the evidence contained scandalous allegations that warranted sealing. Additionally, the court had to consider the admissibility of the bankruptcy notice in light of the attached order.

The court ruled that the notices to produce were not relevant and thus set them aside. It dismissed the application filed on 2 March 2009 and ordered specific parts of the applicant’s material to be struck out. The court also mandated that certain affidavits and notices be sealed and only opened with a court order. The applicant was directed to compile a composite affidavit with the unstruck parts of their previous affidavits and to file it by a specified date. Furthermore, the court altered the questions to be decided at the upcoming hearing to include a query about the validity of the bankruptcy notice. Lastly, the applicant was ordered to pay the costs associated with the respondent’s applications and the material that was struck out.

In summary, the court found the notices to produce irrelevant and dismissed the application filed by the applicant. It also ordered certain documents to be sealed and the applicant to compile a new affidavit. The court directed the inclusion of an additional question at the next hearing regarding the bankruptcy notice and mandated the applicant to pay the respondent’s costs.

Orders

Orders of the court

1.

Each of the Notices to Produce filed 13 February 2009 and 2 March 2009 be set aside.

2.

The application in a case filed by the applicant on 2 March 2009 be dismissed.

3.

Those parts of the applicant’s material identified in the Schedule to the Reasons for Judgment are struck out, and each of the following documents will be sealed in an envelope and marked “Not to be opened without the order of the Court”:

(a) Affidavit of applicant filed 18 November 2008;

(b) Notice of Objection filed 24 November 2008;

(c) Affidavit of applicant filed 24 November 2008;

(d) Affidavit of applicant filed 4 December 2008;

(e) Supplementary application filed 30 January 2009;

(f) Affidavit of applicant filed 30 January 2009;

(g) Affidavit of applicant filed 3 February 2009;

(h) Affidavit of applicant filed 13 February 2009;

(i) Affidavit of applicant filed 2 March 2009;

(j) Affidavit of applicant filed 5 March 2009;

(k) Notice to Produce filed 2 March 2009.

4.

The applicant is directed to file a composite affidavit containing those parts of his earlier affidavits not struck out, such affidavit to be filed and served by 27 March 2009.

5.

The separate questions to be decided by the Court at the hearing on

27 March 2009

be varied to add thereto the following:

“Whether the bankruptcy notice is invalid because it only has attached to it the order of the Deputy Registrar made on 3 September 2008”

6.

The applicant is to pay the costs to be taxed of the respondent Telstra Corporation Ltd:

(a) of and incidental to its application filed 27 February 2009;

(b) of and incidental to the applicant’s application filed 2 March 2009; and

(c) caused by the material struck out pursuant to Order 3 hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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