Ivory v Telstra Corporation Limited - [2009] FMCA 227

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

Each of the Notices to Produce filed 13 February 2009 and 2 March 2009 be set aside.
The application in a case filed by the applicant on 2 March 2009 be dismissed.
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…

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.

Keep reading for free

Create a free CaseChat account to read Ivory v Telstra Corporation Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FMCA 227
Decision Date: 20 March 2009

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

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

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

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;

(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.

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.

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”

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.