Kirby v Centro Properties Limited (No 3) - [2012] FCA 221

FEDERAL COURT OF AUSTRALIA
Kirby v Centro Properties Limited (No 3) [2012] FCA 221

Citation: Kirby v Centro Properties Limited (No 3) [2012] FCA 221

Parties:
RICHARD KIRBY v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307) and PRICEWATERHOUSECOOPERS

RICHARD KIRBY v CENTRO RETAIL LIMITED (ACN 114 757 783), CENTRO MCS MANAGER LIMITED (ACN 051 908 984), PRICEWATERHOUSECOOPERS and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)

NICHOLAS VLACHOS, MONATEX PTY LTD, RAMON FRANCO v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307), CENTRO RETAIL LIMITED (ACN 114 757 783), CENTRO MCS MANAGER LIMITED (ACN 051 908 984) and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)

NICHOLAS STOTT v PRICEWATERHOUSECOOPERS SECURITIES LIMITED

NICHOLAS VLACHOS, MONATEX PTY LTD, RAMON FRANCO v PRICEWATERHOUSECOOPERS

File number(s): VID 326 of 2008
VID 327 of 2008
VID 366 of 2008
VID 1028 of 2010
VID 1041 of 2010

Judge: GORDON J

Date of judgment: 13 March 2012

Catchwords: EVIDENCE – Evidence Act 1995 (Cth) ss 135, 136 167(a), 169 and 192A – reasonable request – for the purpose of determining a question that relates to a previous representation – implied representation which might be relevant for the purposes of the proceedings – representation might be relied on for hearsay purpose – failure or refusal to comply with request – without reasonable cause – general discretion to exclude or limit use of evidence – unfair prejudice – framing of limitation order

Legislation: Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)

Cases cited:
Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324
Hamod v State of New South Wales (No 10) [2008] NSWSC 611
Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 237
Roach v Page (No 11) [2003] NSWSC 907
Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

Australian Law Reform Commission, Evidence, Report No 38 (1987)

Date of hearing: 9 March 2012

Date of last submissions: 9 March 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 79

Counsel for the Applicant (Kirby): Mr MBJ Lee SC and Mr WAD Edwards

Solicitor for the Applicant (Kirby): Maurice Blackburn

Counsel for the Applicants (Vlachos, Monatex Pty Ltd & Franco): Ms RM Doyle SC and Ms R Enbom

Solicitor for the Applicants (Vlachos, Monatex Pty Ltd & Franco): Slater & Gordon

Counsel for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited: Mr R McHugh SC with Mr Sulan

Solicitor for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited: King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 326 of 2008

BETWEEN:
RICHARD KIRBY
Applicant

AND:
CENTRO PROPERTIES LIMITED (ACN 078 590 682)
First Respondent

CPT MANAGER LIMITED (ACN 054 494 307)
Second Respondent

PRICEWATERHOUSECOOPERS
Third Respondent

JUDGE:

GORDON J

DATE OF ORDER:

13 MARCH 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Pursuant to s 136(a) of the Evidence Act 1995 (Cth), the evidence of the previous representations contained in:

(a)paragraphs 53, 60, 72,…

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: [2012] FCA 221
Decision Date: 13 March 2012

CaseChat Overview and Summary

In Kirby v Centro Properties Limited (No 3), the primary issue was the admissibility of certain evidence under the Evidence Act 1995 (Cth) in a proceeding involving allegations of misconduct in the context of a property investment scheme. The matter was heard in the Federal Court of Australia, where Justice Bromberg was tasked with deciding whether the content of specific affidavits, which referenced previous representations, could be admitted beyond simply proving the representations were made.

The legal issues before the court included whether the representations in question could be admitted for their content under the hearsay rule exceptions and whether the failure or refusal to comply with a reasonable request for the purpose of determining a question relating to a previous representation warranted any sanctions. Furthermore, the court had to consider whether the exclusion of the content of the representations would result in unfair prejudice to any party, and if so, whether the court should exercise its discretion to limit the use of the evidence rather than exclude it outright.

Justice Bromberg determined that the evidence in question could only be admitted to prove that the representations were made and not for their content. The court found that the request for the evidence was reasonable and that the failure to provide it without reasonable cause warranted limiting its use. Consequently, the content of the previous representations was admissible only to establish that they were made, and not for any hearsay purpose. Additionally, a specific sentence in one of the affidavits was struck out due to its prejudicial nature. These findings led to the orders that were subsequently entered, in accordance with the Federal Court Rules 2011.

Orders

Orders of the court

1. Pursuant to s 136(a) of the Evidence Act 1995 (Cth), the evidence of the previous representations contained in:

(a) paragraphs 53, 60, 72, 74, 99, 101, 127, 131 and 143 of the Affidavit of John Grouios sworn on 21 December 2011; and

(b) paragraphs 134, 135, 139, 140 and 141 of the affidavit of Stephen John Cougle sworn on 22 December 2011,

are admissible only as evidence of the fact that the previous representations set out in those paragraphs were made and for no other purpose.

2. The seventh sentence in paragraph 38 of the affidavit of Stephen John Cougle sworn on 22 December 2011 is struck out.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Kirby v Centro Properties Limited (No 3) [2012] FCA 221
Parties:		RICHARD KIRBY v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307) and PRICEWATERHOUSECOOPERS RICHARD KIRBY v CENTRO RETAIL LIMITED (ACN 114 757 783), CENTRO MCS MANAGER LIMITED (ACN 051 908 984), PRICEWATERHOUSECOOPERS and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322) NICHOLAS VLACHOS, MONATEX PTY LTD, RAMON FRANCO v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307), CENTRO RETAIL LIMITED (ACN 114 757 783), CENTRO MCS MANAGER LIMITED (ACN 051 908 984) and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322) NICHOLAS STOTT v PRICEWATERHOUSECOOPERS SECURITIES LIMITED NICHOLAS VLACHOS, MONATEX PTY LTD, RAMON FRANCO v PRICEWATERHOUSECOOPERS
File number(s):		VID 326 of 2008 VID 327 of 2008 VID 366 of 2008 VID 1028 of 2010 VID 1041 of 2010
Judge:		GORDON J
Date of judgment:		13 March 2012
Catchwords:		EVIDENCE – Evidence Act 1995 (Cth) ss 135, 136 167(a), 169 and 192A – reasonable request – for the purpose of determining a question that relates to a previous representation – implied representation which might be relevant for the purposes of the proceedings – representation might be relied on for hearsay purpose – failure or refusal to comply with request – without reasonable cause – general discretion to exclude or limit use of evidence – unfair prejudice – framing of limitation order
Legislation:		Corporations Act 2001 (Cth) Evidence Act 1995 (Cth)
Cases cited:		Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324 Hamod v State of New South Wales (No 10) [2008] NSWSC 611 Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 237 Roach v Page (No 11) [2003] NSWSC 907 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 Australian Law Reform Commission, Evidence, Report No 38 (1987)
Date of hearing:	9 March 2012
Date of last submissions:	9 March 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	79
Counsel for the Applicant (Kirby):	Mr MBJ Lee SC and Mr WAD Edwards
Solicitor for the Applicant (Kirby):	Maurice Blackburn
Counsel for the Applicants (Vlachos, Monatex Pty Ltd & Franco):	Ms RM Doyle SC and Ms R Enbom
Solicitor for the Applicants (Vlachos, Monatex Pty Ltd & Franco):	Slater & Gordon
Counsel for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited:	Mr R McHugh SC with Mr Sulan
Solicitor for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited:	King & Wood Mallesons

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 326 of 2008

JUDGE:	GORDON J
DATE OF ORDER:	13 MARCH 2012
WHERE MADE:	MELBOURNE