Katke v Brosnan

Case [2014] FCA 1050

FEDERAL COURT OF AUSTRALIA

Katke v Brosnan [2014] FCA 1050

Citation: Katke v Brosnan [2014] FCA 1050
Appeal from: Application for leave to appeal: Brosnan v Katke [2014] FCA 974
Parties: JEFFREY JAMES KATKE, METAGENICS AUSTRALIA PTY LTD ACN 113 937 572, METAGENICS INC and JEFFREY BLAND v MICHAEL BROSNAN, LEON BROSNAN, MARY BROSNAN, ALAN GEE, ALAN BAWDEN GRANT, BARBARA LEE GRANT, ALAN DAVID GRANT, MICHAEL CURLEY, GRAEME JOINER and HEALTH WORLD LIMITED ACN 010 636 165
File number: QUD 510 of 2014
Judges: RANGIAH J
Date of judgment: 25 September 2014
Catchwords: APPEAL AND NEW TRIAL – application for leave to appeal – asset preservation orders – mandatory interlocutory injunctions made against third party pending judgment – leave to appeal granted – expedition refused
Legislation: Federal Court of Australia Act1976 (Cth) ss 4, 25(2B)(c), 37M, 37P
Federal Court Rules 2011 (Cth)
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 cited
British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCA 718 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 cited
Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 cited
Paul’s Retail Pty Ltd v Lonsdale Australia Limited [2012] FCA 724 cited
Date of hearing: 24 September 2014 and 25 September 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 22
24 September 2014
Counsel for the Applicants: Mr W Sofronoff QC
Solicitor for the Applicants: Johnson Winter & Slattery
Counsel for the First to Ninth Respondents: Mr MD Martin QC with Ms A Nicholas
Solicitor for the First to Ninth Respondents: Mills Oakley
Tenth Respondent: The Tenth Respondent did not appear
25 September 2014
Counsel for the Applicants and the Tenth Respondent: Mr W Sofronoff QC with Mr A Pomerenke QC
Solicitor for the Applicants and the Tenth Respondent: Johnson Winter & Slattery
Counsel for the First to Ninth Respondents: Ms A Nicholas
Solicitor for the First to Ninth Respondents: Mills Oakley

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 510 of 2014
BETWEEN:

JEFFREY JAMES KATKE
First Applicant

METAGENICS AUSTRALIA PTY LTD ACN 113 937 572
Second Applicant

METAGENICS INC
Third Applicant

JEFFREY BLAND
Fourth Applicant
AND:

MICHAEL BROSNAN
First Respondent

LEON BROSNAN
Second Respondent

MARY BROSNAN
Third Respondent

ALAN GEE
Fourth Respondent

ALAN BAWDEN GRANT
Fifth Respondent

BARBARA LEE GRANT
Sixth Respondent

ALAN DAVID GRANT
Seventh Respondent

MICHAEL CURLEY
Eighth Respondent

GRAEME JOINER
Ninth Respondent

HEALTH WORLD LIMITED ACN 010 636 165
Tenth Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

25 SEPTEMBER 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicants have leave to appeal from the judgment of Greenwood J given on 10 September 2014.

2.The appeal be listed for hearing in the Full Court and Appellate Sittings of the Court in Brisbane in the period 9 February – 6 March 2015 before a Full…

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Katke v Brosnan [2014] FCA 1050
Case
[2014] FCA 1050
Decision Date

CaseChat Overview and Summary

In the case of Katke v Brosnan, the applicants sought leave to appeal from a judgment delivered by Greenwood J on 10 September 2014. The applicants were aggrieved by the lower court's decision to grant asset preservation orders and mandatory interlocutory injunctions against a third party, which were made pending the final judgment in the case. The appeal was heard and determined by the Federal Court of Australia.

The primary legal issues before the court were whether the applicants had demonstrated a sufficient arguable case for leave to appeal and whether the appeal should be expedited given the circumstances. The applicants contended that the lower court had erred in its application of the relevant legal principles, and that the asset preservation orders and mandatory interlocutory injunctions were inappropriate in the circumstances.

The court considered the relevant legal principles and found that the applicants had made out a prima facie case for leave to appeal. The court held that the applicants had demonstrated that the lower court's decision involved a question of law of general public importance and that the appeal raised an arguable question of law. However, the court refused to grant expedition for the appeal, noting that the applicants had not demonstrated that the appeal ought to be heard before other appeals listed for the relevant period. The court also made orders regarding the filing and service of various documents in relation to the appeal.

The court granted the applicants leave to appeal from the judgment of Greenwood J and ordered that the appeal be listed for hearing in the Full Court and Appellate Sittings of the Court in Brisbane in the period 9 February – 6 March 2015. The court made further orders in relation to the filing and service of documents in relation to the appeal, including outlines of submissions, lists of authorities and legislation, and copies of Part C of the Appeal Book. The court reserved costs to the Full Court.

Orders

Orders of the court

1. The applicants have leave to appeal from the judgment of Greenwood J given on 10 September 2014.

2. The appeal be listed for hearing in the Full Court and Appellate Sittings of the Court in Brisbane in the period 9 February – 6 March 2015 before a Full Court.

3. The hearing be listed for an estimate of one day.

4. The appellants within 28 days of today submit to the Registrar a draft of the index to Part A of the Appeal Book and Part B of the Appeal Book.

5. In accordance with Practice Note APP2, not later than 4.00 pm 20 business days before the hearing of the appeal, the appellants must file and serve on the respondents its outline of submissions.

6. In accordance with Practice Note APP2, not later than 4.00 pm 15 business days before the hearing of the appeal, the respondents must file and serve on the appellants a copy of its outline of submissions together with a list of materials it requires to be included in Part C of the Appeal Book.

7. In accordance with Practice Note APP2, not later than 4.00 pm 10 business days before the hearing of the appeal, the appellants must file and serve on the respondents a copy of any submissions in reply.

8. In accordance with Practice Note APP2, not later than 5 business days before the hearing of the appeal, the appellants must:

(a) file four copies; and

(b) serve on the respondents an appropriate number of copies

of Part C of the Appeal Book.

9. Outlines of submissions not exceed 10 pages in length, including any annexures and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

10. Each party file and serve a list of authorities and legislation in accordance with Practice Note CM 2.

11. Costs be reserved to the Full Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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