Kheir Group Pty Ltd v Panoramic Resources Ltd

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FEDERAL COURT OF AUSTRALIA

Kheir Group Pty Ltd v Panoramic Resources Ltd [2025] FCA 868

File number(s): NSD 1452 of 2023
Judgment of: STELLIOS J
Date of judgment: 29 July 2025
Catchwords: PRACTICE AND PROCEDURE – application for leave under s 168(7) of the Evidence Act 1995 (Cth) to make requests under s 167(c) – requests to verify authenticity of documents made out of time – where request made one year after time specified in s 168(5) – where explanation of delay is inadequate – where documents relating to request allegedly not in possession of applicants – where concerns about authenticity of documents can be addressed at trial – utility of request – leave refused
EVIDENCE – application for leave under Evidence Act 1995 (Cth) – considerations under s 192 – additional considerations relevant to granting leave under s 168 –importance of evidence – length and nature of delay – explanation for delay – utility of giving leave – proximity of request to trial
Legislation:

Acts Interpretation Act 1901 (Cth) s 36(1), item 6

Competition and Consumer Act 2010 (Cth) Sch 1, ss 18 and 236

Evidence Act 1995 (Cth) ss 166, 166(b), 167, 167(a), 167(c), 168, 168(5), 168(7), 169, 169(1), 169(1)(c), 169(4)(a), 192 and 192(2)

Federal Court of Australia Act 1976 (Cth) s 37M(1)

Evidence Act 1995 (NSW) s 168
Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213

Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 69
Date of hearing: 8 July 2025
Counsel for the First and Second Applicants: B Kasep
Solicitor for the First and Second Applicants: PRP Lawyers
Counsel for the First Respondent: The First Respondent did not appear
Solicitor for the First Respondent: Thomson Geer
Counsel for the Second Respondent: A Flecknoe-Brown
Solicitor for the Second Respondent: Barry Nilsson Lawyers

ORDERS

NSD 1452 of 2023
BETWEEN:

KHEIR GROUP PTY LTD (ACN 135 115 301)

First Applicant

DAVID KHEIR

Second Applicant
AND:

PANORAMIC RESOURCES LTD (ACN 095 792 288)

First Respondent

RICKMAN VICTOR RAJASOORIAR

Second Respondent

ORDER MADE BY:

STELLIOS J

DATE OF ORDER:

29 JULY 2025

THE COURT ORDERS THAT:

1.The Interlocutory Application dated 9 May 2025 be dismissed.

2.The second respondent pay the applicants’ costs of the Interlocutory Application.

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


REASONS FOR JUDGMENT

STELLIOS J:

  1. This is an Interlocutory Application filed by the second respondent seeking leave pursuant to s 168(7) of the Evidence Act 1995 (Cth) to make a request under s 167(c) to determine the “authenticity, identity or admissibility of” certain documents. Leave is required because the 21 day period specified in s 168(5) for making such…

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Details
Case
[2025] FCA 868
Decision Date

CaseChat Overview and Summary

Kheir Group Pty Ltd and Ray Kheir sought leave under the Evidence Act 1995 (Cth) to request the second respondent, Panoramic Resources Ltd, verify the authenticity of certain documents, which were provided to the respondents during the discovery process. The documents in question were text messages and diary entries that were central to the substantive proceeding, which sought damages for alleged misleading and deceptive conduct under the Australian Consumer Law. The second respondent argued that the request was made out of time and lacked adequate explanation for the delay. The Court was required to determine whether there was good reason to grant the leave under s 168(7) of the Evidence Act, considering factors such as the importance of the evidence, the length and nature of the delay, the explanation for the delay, and the utility of giving leave. The Court found that the delay was considerable, the explanation for the delay was inadequate, the request was made close to the trial, and there was a lack of utility in making the request. Consequently, the Court refused the application for leave to make the request and ordered the second respondent to pay the applicants' costs of the Interlocutory Application.

Orders

Orders of the court

1. The Interlocutory Application dated 9 May 2025 be dismissed.

2. The second respondent pay the applicants’ costs of the Interlocutory Application.

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

Background

Background to the litigation

For the reasons that follow, I am not satisfied that there is good reason to grant leave to the second respondent to make the request.BACKGROUNDThe substantive proceeding The Interlocutory Application is made in a substantive proceeding in which the applicants seek damages pursuant to s 236 of the Australian Consumer Law in Sch 1 to the Competition and Consumer Act 2010 (Cth) for alleged misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law. The alleged contraventions are based on the second respondent’s alleged representations relating to, in broad terms, the future financial performance of the first respondent.The documents to which the request relates The prospective request (Request) under s 167(c) of the Evidence Act would, if leave were given, relate to the following documents:(1)A text message purportedly sent by a director of the first applicant, Ray Kheir, to the second applicant on 13 April 2022 (document (1));(2)Text messages purportedly exchanged between the second applicant and Ray Kheir on 15 May 2022 (document (2));(3)The purported hardcopy document comprising pages from a notebook entitled “Panoramic Diary Entries – Ray” (document (3));(4)The page of a diary purportedly recording notes of the meeting between the second applicant, Ray Kheir and the second respondent on 13 April 2022 (document (4)); and(5)The page of a diary purportedly recording notes of a representation made by the second respondent to the second applicant on 16 May 2022 (document (5));(collectively, the relevant documents). Document (3) contains entries that relate to the purported meetings on 13 April 2022 and 16 May 2022. Copies of the relevant documents were reproduced as exhibits to the affidavit of Jack Geng affirmed on 9 May 2025. Copies of documents (1), (2), (4) and (5) were reproduced as exhibits to the affidavit of the second applicant that was affirmed and served on 15 April 2024. Copies of documents (1) and (3) were also reproduced as exhibits to the affidavit of Ray Kheir that was affirmed, filed and served on 13 March 2024.The discovery process leading to the Request The Request has been sought following discovery. On 10 February 2025, the Court made various orders for discovery, including that the applicants provide discovery in relation to a number of categories. Those categories included:·certain correspondence between the second applicant and Ray Kheir;·certain correspondence or documents in respect of discussions by Ray Kheir and/or the first applicant with the second applicant concerning the respondents; and·the whole of the original versions of documents (3) to (5). On 25 March 2025, the second respondent’s solicitor, Mr Geng, downloaded and accessed the applicants’ discovery. In his affidavit affirmed on 9 May 2025, Mr Geng deposes that the materials discovered “were not voluminous and were accompanied by various explanations for the absence of relevant material, including due to the voluntary disposal of a mobile phone by Mr David Kheir some time in 2023 and the alleged theft of original documents and mobile phone from Mr Ray Kheir in 2024”.

Evidence

Evidence Before The Court

In that regard, the observations of Black J in HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 at [23], when considering the corollary to s 168 in the Evidence Act 1995 (NSW), are illustrative of some additional considerations relevant to the satisfaction that there is “good reason” to give leave under s 168 (emphasis added):I am satisfied that there is good reason to grant the leave sought by Mr Clements. The evidence goes to a significant issue; Mr Chapman's affidavit appears to have been very detailed, in 39 pages and 253 paragraphs with 113 exhibits and it would have taken some time for Mr Clements to review that affidavit and identify the matters which arose from it to which he was required to respond; the delay in giving the notice was not particularly long, given the history of the proceedings and having regard to the complexity of that affidavit; and, most importantly, the notice was given in sufficient time to allow HP Mercantile to make arrangements to call Mr Purcell had it wished to do so.In addition to taking account of the s 192 considerations, I also consider the following to be relevant to my decision: the importance of the evidence, the length and nature of the delay, the explanation for the delay, and the utility of giving leave.Importance of the evidence There is no question that the relevant documents are important to the substantive proceeding. They are annexed to affidavits which form part of the evidence in chief that the applicants intend to lead at trial. They go directly to the central issues in the proceeding about the alleged representations.Delay in making the request The relevant documents were first provided to the respondents in March and April of 2024:(1)Ray Kheir’s affidavit served on 13 March 2024 exhibited documents (1) and (3).(2)The second applicant’s affidavit served on 15 April 2024 exhibited documents (1), (2), (4) and (5). The parties were in agreement that the applicable time limit under s 168(5) for a s 167 request expired on 3 April 2024 for Ray Kheir’s affidavit and on 7 May 2024 for the second applicant’s affidavit. Applying the rule in item 6 of the table in s 36(1) of the Acts Interpretation Act 1901 (Cth), the deadline might in fact be 4 April 2024 and 8 May 2024. In any event, it is common ground that the time periods have long since expired. In his affidavit of 9 May 2025, Mr Geng deposes that it was unnecessary to make a request under s 167 until the applicants’ discovery had been completed. He states that he was alive to the possibility that the applicants may discover documents establishing the provenance and authenticity of the relevant documents. On 25 March 2025, he downloaded and accessed the applicants’ discovery. The materials were not voluminous and were accompanied by explanations about the absence of relevant material. The applicants also discovered the videos. On 27 March 2025, Mr Geng wrote to the applicants’ then solicitor, outlining his concerns. He took the view that the just, quick and cheap management of the proceeding required the issues to be addressed as a matter of the inadequacy of the discovery process rather than through an entirely separate process. At that point he did not consider that there was a proper basis in the evidence to raise authenticity concerns and considered it improper to raise the question with the Court without further material.

Decision

Reasons for decision

While the authenticity of the relevant documents is an important issue in this proceeding, I am not persuaded that there is good reason for leave to be given to make the Request. That is primarily the case because of the considerable delay in seeking leave to make the Request out of time, the absence of persuasive reasons for the delay, the proximity of the Request to the trial, and the lack of utility.CONCLUSION For the reasons given, the Interlocutory Application is refused with costs.

Ratio Decidendi

Legal Principle Established

As a result of the late amendment, Counsel for the second respondent accepted that the applicants might require an opportunity for further submissions. The Court put that option to counsel for the applicants but, having sought instructions, the opportunity was declined.CONSIDERATION The question to be resolved is whether leave should be given under s 168(7) of the Evidence Act. That turns on whether “there is a good reason” to give leave. I am not persuaded that the statutory condition in s 168(7) for an exercise of power to grant leave is satisfied. In short, that is due to the delay in making the application, the lack of utility of an order being made, and the mandatory considerations under s 192. Leave under s 168(7) As noted by Gaudron, Kirby and Callinan JJ in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 at [41] (Hayne J agreeing at [67]), “[i]n addition to matters which may be relevant in a particular case, in all cases [of considering leave under the Evidence Act] the court must take into account the matters prescribed by s 192(2)”, although “[s]ection 192 is not exhaustive as to the matters to be taken into account”: at [44]. In that regard, the observations of Black J in HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 at [23], when considering the corollary to s 168 in the Evidence Act 1995 (NSW), are illustrative of some additional considerations relevant to the satisfaction that there is “good reason” to give leave under s 168 (emphasis added):I am satisfied that there is good reason to grant the leave sought by Mr Clements. The evidence goes to a significant issue; Mr Chapman's affidavit appears to have been very detailed, in 39 pages and 253 paragraphs with 113 exhibits and it would have taken some time for Mr Clements to review that affidavit and identify the matters which arose from it to which he was required to respond; the delay in giving the notice was not particularly long, given the history of the proceedings and having regard to the complexity of that affidavit; and, most importantly, the notice was given in sufficient time to allow HP Mercantile to make arrangements to call Mr Purcell had it wished to do so.In addition to taking account of the s 192 considerations, I also consider the following to be relevant to my decision: the importance of the evidence, the length and nature of the delay, the explanation for the delay, and the utility of giving leave.Importance of the evidence There is no question that the relevant documents are important to the substantive proceeding. They are annexed to affidavits which form part of the evidence in chief that the applicants intend to lead at trial. They go directly to the central issues in the proceeding about the alleged representations.Delay in making the request The relevant documents were first provided to the respondents in March and April of 2024:(1)Ray Kheir’s affidavit served on 13 March 2024 exhibited documents (1) and (3).(2)The second applicant’s affidavit served on 15 April 2024 exhibited documents (1), (2), (4) and (5).