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King v GIO Australia Holdings Ltd

King v GIO Australia Holdings Ltd

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Case Copied 13 December 2001 20 min read

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FEDERAL COURT OF AUSTRALIA
King v GIO Australia Holdings Ltd [2001] FCA 1773
COSTS – subpoena – non-party – subpoena to ASIC to produce transcript of examination by ASIC – legal expenses incurred by persons examined by ASIC in advancing claims to confidentiality – whether Court has the power to order party issuing subpoena to pay such expenses – discretion
WORDS AND PHRASES – “proceeding”, “costs”
Federal Court of Australia Act 1976 (Cth) ss 4, 43
Federal Court Rules O 27 rr 1, 4A
Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319 referred to
Fiorentino v Irons (1997) 79 FCR 327 referred to
Bank of New South Wales v Withers (1981) 35 ALR 21 considered
Knight v FP Special Assets Ltd (1992) 174 CLR 178 considered
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1992) 45 FCR 224 referred to
Geoform Design Pty Ltd v Randwick City Council (1995) 87 LGERA 140 referred to
O’Keeffe Nominees Pty Ltd v BP Australia Ltd (1995) 55 FCR 591 referred to
Pyramid Building Society (in liq) v Farrow Finance Corporation (in liq) [1995] 1 VR 465 considered
Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609 referred to
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (2001) 109 FCR 280 referred to
Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 considered
SHANE ROBERT KING v GIO AUSTRALIA HOLDINGS LTD (ACN 054 573 401), GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372), DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANCE, DAVID O’HALLORAN AND IAN POLLARD
N 955 OF 1999
MOORE J
13 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 955 OF 1999

BETWEEN:

SHANE ROBERT KING
APPLICANT

AND:

GIO AUSTRALIA HOLDINGS LTD
(ACN 054 573 401)
FIRST RESPONDENT

GRANT SAMUEL & ASSOCIATES PTY LTD
(ACN 050 036 372)
SECOND RESPONDENT

DAVID MORTIMER
THIRD RESPONDENT

BRUCE HOGAN
FOURTH RESPONDENT

STEWART STEFFEY
FIFTH RESPONDENT

RONALD ASHTON
SIXTH RESPONDENT

MARINA DARLING
SEVENTH RESPONDENT

ANDREW KALDOR
EIGHTH RESPONDENT

LLOYD LANCE
NINTH RESPONDENT

DAVID O’HALLORAN
TENTH RESPONDENT

IAN POLLARD
ELEVENTH RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

13 DECEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS:
1.The applications by PricewaterhouseCoopers, PricewaterhouseCoopers Securities, Geoffrey Vines and the unnamed member of Arthur Andersen for expenses and costs be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 955 OF 1999

BETWEEN:

SHANE ROBERT KING
APPLICANT

AND:

GIO AUSTRALIA HOLDINGS LTD
(ACN 054 573 401)
FIRST RESPONDENT

GRANT SAMUEL & ASSOCIATES PTY LTD
(ACN 050 036 372)
SECOND RESPONDENT

DAVID MORTIMER
THIRD RESPONDENT

BRUCE HOGAN
FOURTH RESPONDENT

STEWART STEFFEY
FIFTH RESPONDENT

RONALD ASHTON
SIXTH RESPONDENT

MARINA DARLING
SEVENTH RESPONDENT

ANDREW KALDOR
EIGHTH RESPONDENT

LLOYD LANCE
NINTH RESPONDENT

DAVID O’HALLORAN
TENTH RESPONDENT

IAN…

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.

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Details

Case: [2001] FCA 1773
Decision Date: 13 DECEMBER 2001

CaseChat Overview and Summary

This case involved an application for expenses or costs by PricewaterhouseCoopers, PricewaterhouseCoopers Securities, Mr Geoffrey Vines and an unnamed member of Arthur Andersen in relation to a subpoena served by GIO Australia Holdings Limited on the Australian Securities and Investments Commission. The subpoena sought the production of records of examination and related books in the investigation of GIO, including transcripts of examinations conducted by ASIC. The examinees participated in the formulation of a regime for access to the transcripts which were produced on subpoena. The applicants sought to invoke the power conferred by s 43 of the Federal Court of Australia Act 1976 and O 27 r 4A of the Federal Court Rules to recover expenses or costs incurred in obtaining legal advice and representation in connection with the subpoena. The court found that s 43 may enable the Court to make an order for costs in a proceeding for the benefit of a non-party, but the expenses actually sought did not amount to "costs" within the meaning of that term in s 43. The court also found that O 27 r 4A did not confer a power to make the order sought. Accordingly, the applications for expenses or costs were dismissed.

Orders