King v GIO Australia Holdings Ltd - [2001] FCA 1487

FEDERAL COURT OF AUSTRALIA
King v GIO Australia Holdings Ltd [2001] FCA 1487
PRACTICE & PROCEDURE – application for leave to amend the statement of claim – where proceedings brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) – where opt-out notice identified the group and the case pleaded against the respondents by reference to the existing statement of claim.
PRACTICE & PROCEDURE – notice to produce served under O 15 r10 of the Federal Court Rules – whether a document is “referred to” in the pleadings – whether correspondence from a party’s solicitor sufficient to constitute notice under O 15 r 10(2) – where documents would have been caught by earlier call for discovery.
Federal Court Rules O 15 r 10
State of Queensland & Anor v J L Holdings Pty Ltd (1996-1997) 188 CLR 146 referred to
Smith v Harris (1883) 48 LT 869 discussed
Dubai Bank Limited v Galaradie & Ors (No 2) [1990] 2 All ER 739 referred to
Global Intertrades Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 referred to
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
24 OCTOBER 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:

24 OCTOBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS AND DIRECTS:
1.the applicant be given leave to amend the statement of claim and to file the seventh further amended statement of claim annexed to the affidavit of Michael John Duffy sworn 12 October 2001.
2.the applicant pay the respondents’ costs thrown away by reason of the amendments.
3.the applicant provide such further and better particulars as it is in a position to provide by 26 October 2001.
4.the respondents make any request for further and better particulars in relation to the seventh further amended statement of claim on or before 1 November 2001.
5.the applicant provide consolidated further and better particulars to the respondents on or before 15 November 2001, which are to incorporate:
(a)such particulars as are still relied upon by the applicant in the:
·    consolidated further and better particulars provided by the applicant to all respondents dated March 2000;
·    additional consolidated further and better particulars provided by the applicant to all respondents dated 27 November 2000;
·    amended additional particulars provided by the applicant to the third to eleventh…

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 1487
Decision Date: 24 OCTOBER 2001

CaseChat Overview and Summary

The case of King v GIO Australia Holdings Ltd [2001] FCA 1487 involved an application by Shane Robert King, the applicant, against GIO Australia Holdings Ltd and others, the respondents, in the Federal Court of Australia. The primary issues addressed by the court were whether the applicant should be granted leave to further amend the statement of claim and whether a notice to produce served under the Federal Court Rules was properly addressed.

The applicant sought leave to amend the statement of claim for a seventh time, proposing revisions to the schedule of risk factors associated with GIO's business activities. The respondents argued that such amendments might prejudice their ability to defend the case, particularly as the group had already been identified and potential group members had been given notice to opt out. The court considered the principles set out by the High Court in State of Queensland & Anor v J L Holdings Pty Ltd, which generally favour allowing amendments to the statement of claim unless there is significant prejudice to the opposing party. The court concluded that the proposed amendments did not materially alter the nature of the applicant's case and granted leave to amend, subject to the applicant paying the respondents' costs incurred due to the amendment.

The second issue concerned a notice to produce served by the applicant's solicitors on the second respondent, Grant Samuel & Associates Pty Ltd, under Order 15 Rule 10 of the Federal Court Rules. The notice sought the production of various documents related to the second respondent's assessment of GIO's business activities. The court examined whether the pleadings sufficiently referred to these documents to trigger the obligation to produce them. After reviewing relevant authorities, the court determined that some categories of documents were not properly referred to in the pleadings and thus not subject to the notice to produce. However, concerning a discounted cash flow valuation model, the court found that the pleading did refer to the document. The second respondent's response to the notice was deemed insufficient, as it did not comply with the requirement to state where the document is and in whose possession it is. The court directed that an officer of the second respondent make a proper statement within 14 days.

The court's final orders included granting leave to amend the statement of claim, directing the applicant to pay the respondents' costs thrown away by the amendment, and requiring the second respondent to make a proper statement regarding the location of the specified document. The case highlights the importance of clear and specific references to documents in pleadings and the consequences of failing to comply with procedural rules regarding document production.

Orders