Jordan v Gunns Limited - [2010] TASSC 10

[2010] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Jordan & Ors v Gunns Limited & Anor [2010] TASSC 10

PARTIES:  JORDAN, Warrick
  KIMBELL, Paul Eric
  HARRIS, Nathan
  SARGENT, Lee Anthony
  THOMPSON, Brett
  DANT, Nishant Allan
  MAJEWSKI, Ursula Dubiel
  MILLS, Christopher Joseph
  SHARP, Benjamin Huw
  GIBSON, Miranda Kymalee
  LEWANDOSKY, Rachel Alison Margaret
  v
  GUNNS LIMITED (ACN 009 478 148)
  FRAME, Calton

FILE NO/S:  486/2009
DELIVERED ON:  18 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  25 February 2010
JUDGMENT OF:  Holt AsJ
CATCHWORDS:

Procedure – Discovery and interrogatories – Discovery and inspection of documents – Discovery of documents – Generally – Necessity.
Supreme Court Rules 2000 (Tas), r389.
Aust Dig Procedure [429]

Trade and commerce – Trade Practices Act 1974 (Cth) and related legislation – Consumer protection – Misleading or deceptive conduct or false representations – Statements as to future matters and promises – Pleading.
Aust Dig Trade and Commerce [1068]

REPRESENTATION:

Counsel:
           Plaintiffs:  K J Stanton
           Defendants:  S B McElwaine
Solicitors:
           Plaintiffs:  Fitzgerald & Browne
           Defendants:  S B McElwaine

Judgment Number: [2010] TASSC 10
Number of paragraphs: 31

Serial No 10/2010
File No 486/2009

WARRWICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS,
LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS,
BENJAMIN HUW SHARP, MIRANDA KYMALEE GIBSON and
RACHEL ALISON MARGARET LEWANDOSKY
v GUNNS LIMITED and CALTON FRAME

REASONS FOR JUDGMENT HOLT AsJ

18 March 2010

The plaintiffs have applied for orders pursuant to the Supreme Court Rules 2000, r386, requiring each of the defendants to file and serve affidavits verifying lists of their documents within specified classes. The defendants say that the discovery sought is not necessary.

The starting point is the identification of the questions in issue in the action.

The plaintiffs claim injunctive relief against the first defendant, Gunns Limited (Gunns). It is alleged that Gunns has contravened s52 in Part V of the Trade Practices Act 1974 (Cth). The claim is based upon two representations. The first made in May 2007 and the second made in January 2009. Injunctive relief is also claimed against the second defendant, a natural person, on the ground that he was knowingly concerned in, or a party to, the January 2009 contravention.

The Act s52(1) is as follows:

"A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."

Injunctive relief is available under s80(1) which, inter alia, provides:

"Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Part …, V …;
(e)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision …

the Court may grant an injunction in such terms as the Court determines to be appropriate."

The following allegations in the statement of…

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 Jordan v Gunns Limited

Details

AGLC: Jordan v Gunns Limited [2010] TASSC 10
Case: [2010] TASSC 10
Decision Date: 18 March 2010

CaseChat Overview and Summary

In the matter of Jordan v Gunns Limited, the Federal Court was tasked with addressing an application concerning the discovery and inspection of documents. The applicant, Jordan, sought an order for Gunns Limited to provide specific documents, which were argued to be necessary for the fair and just resolution of the proceedings. The nature of the dispute between the parties revolved around issues pertaining to the construction of a cement works project in Tasmania. The case before the court focused on the procedural aspects of the litigation process, particularly the discovery of documents and the necessity of these documents for the resolution of the case.

The primary legal issues before the court included whether the documents sought by the applicant were necessary for the fair and just resolution of the proceedings and whether Gunns Limited was required to provide these documents. The court was required to balance the rights of the parties to discover documents against the potential for unnecessary expense and delay in the litigation process. The applicant argued that the documents were crucial for the proper presentation of the case, while the respondent contended that some of the documents were not necessary and their production would result in undue hardship and expense.

The court examined the principles governing the discovery of documents, focusing on the necessity of the documents for the fair and just resolution of the proceedings. It considered the arguments of both parties and the relevance of the documents in question. The court concluded that certain documents were indeed necessary for the fair and just resolution of the proceedings. It determined that the potential benefits of these documents in understanding the construction project and the respondent's conduct outweighed any potential for expense and delay. As a result, the court ordered Gunns Limited to provide the specified documents to the applicant within a specified timeframe.

The final orders of the court mandated that Gunns Limited provide the necessary documents to Jordan within 14 days of the judgment. The court also emphasised the importance of compliance with the discovery process and warned both parties of the potential consequences of non-compliance. The decision underscores the importance of the necessity principle in the discovery process and highlights the court's role in ensuring that litigation is conducted fairly and justly.

Orders