Kirby v Centro Properties Limited (No 4)

Link copied
Case Copied 19 min read

FEDERAL COURT OF AUSTRALIA

Kirby v Centro Properties Limited (No 4) [2012] FCA 323

Citation: Kirby v Centro Properties Limited (No 4) [2012] FCA 323
Parties:

RICHARD KIRBY v CENTRO PROPERTIES LIMITED (ACN 078 590 682), CPT MANAGER LIMITED (ACN 054 494 307), PRICEWATERHOUSECOOPERS and CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)

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: 29 March 2012
Date of hearing: 29 March 2012
Date of last submissions: 29 March 2012
Date of publication of reasons: 2 April 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 17
Counsel for the Applicant (Kirby): Mr MBJ Lee SC with Mr WAD Edwards
Solicitor for the Applicant (Kirby): Maurice Blackburn
Counsel for Centro Properties Limited & CPT Manager Limited : Mr M Garner
Solicitor for Centro Properties Limited & CPT Manager Limited: Freehills
Counsel for Centro Retail Limited, Centro MCS Manager Limited & Centro Corporate Services: Mr P Jopling QC
Solicitor for Centro Retail Limited, Centro MCS Manager Limited & Centro Corporate Services: Middletons
Counsel for PricewaterhouseCoopers & PricewaterhouseCoopers Securities Limited: Mr S Nixon and Mr Watson
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

CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)
Fourth Respondent

JUDGE:

GORDON J

DATE OF ORDER:

29 MARCH 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application by Centro Properties Limited, CPT Manager Limited, Centro Retail Limited and Centro MCS Manager Limited is dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 327 of 2008
BETWEEN:

RICHARD KIRBY
Applicant
AND:

CENTRO RETAIL LIMITED (ACN 114 757 783)
First Respondent

CENTRO MCS MANAGER LIMITED (ACN 051 908 984)
Second Respondent

PRICEWATERHOUSECOOPERS
Third Respondent

CENTRO RETAIL AUSTRALIA LIMITED (ACN 149 781 322)
Fourth Respondent

JUDGE:

GORDON J

DATE OF ORDER:

29 MARCH 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application by Centro Properties Limited, CPT Manager Limited, Centro Retail Limited and Centro MCS Manager Limited is dismissed.

Note:Entry of orders is dealt with in…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kirby v Centro Properties Limited (No 4) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2012] FCA 323
Decision Date

CaseChat Overview and Summary

The matter before the court involved an application by Centro Properties Limited and CPT Manager Limited, along with associated entities, for a limitation order under section 136 of the Evidence Act 1995 (Cth) to restrict the use of certain parts of analyst reports that the Kirby/Stott applicants sought to tender. The respondents, Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited, joined the application. The central issue was whether specific adverse opinions expressed in the analyst reports could be admitted as evidence only for the fact that such statements were made, or if they could be used for additional purposes. The court had to determine if the contested content of the reports could be excluded under section 136 of the Evidence Act due to potential prejudice or misleading effects.

The court found that the analyst reports were indeed relevant to the case, particularly in establishing what the market knew about the Centro Group at the relevant times. The respondents attempted to limit the use of certain phrases within these reports, which were predominantly critical of the Centro entities. However, the court held that if the material was relevant, it could not be excluded unless it fell under one of the exclusion rules outlined in the Evidence Act. The court further reasoned that the respondents were not entitled to selectively choose which evidence the court should consider, especially if the material was relevant to determining whether certain information was "material" and "generally available" in the market. The court dismissed the application, allowing the contested parts of the analyst reports to be used for their full evidentiary value.

The court's decision was based on the principle that if evidence is relevant, it should not be excluded merely because it might be prejudicial or misleading unless explicitly covered by the statutory exclusion rules. The court held that the respondents could not restrict the use of the analyst reports to only proving the fact of their publication, as the content was relevant to broader issues in the case. Consequently, the application by Centro Properties Limited, CPT Manager Limited, Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited was dismissed. The court's order allowed the contested parts of the analyst reports to be admitted in full, with no limitation on their use, as per the decision outlined in the reasons for judgment.

Orders

Orders of the court

1. The application by Centro Properties Limited, CPT Manager Limited, Centro Retail Limited and Centro MCS Manager Limited is dismissed.

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

1. The application by Centro Properties Limited, CPT Manager Limited, Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited is dismissed.

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

On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision. CNP and CER sought an order under s 136 of the Evidence Act that statements in identified analyst reports sought to be tendered by the Kirby / Stott Applicants were admissible only as evidence of the fact that previous representations set out in those reports were made and for no other purpose. The analyst reports are set out in Annexure A to these reasons for decision. A number of matters should be noted at the outset. First, there was no dispute that the analyst reports were relevant. That is unsurprising. They are, at the very least, relevant to the state of knowledge of the market about the Centro Group at the time these reports were issued. Indeed, one of the analyst reports was not the subject of any objection. Secondly, during the course of argument it became apparent for the first time that CNP’s application under s 136 of the Evidence Act was limited to a phrase or two in each analyst report. The phrase or phrases the subject of the application are identified in bold in the extracted paragraphs set out in Annexure A (the disputed passages). As will be self evident, the disputed passages are, broadly speaking, unfavourable statements of opinion regarding CNP and / or CER. For example, “poor disclosure”, “failed to flag these risks”, “murky disclosure”, “lack of transparency”, “opaque disclosure”, “lack of meaningful disclosure” and the like. The disputed passages are evidence of what market analysts thought and said about the Centro Group at the relevant time. That evidence is relevant to a question the Court must decide ‑ what was known in the market. Indeed, CNP accepted that the analyst reports may be relevant for a purpose other than proof of an asserted fact; that is, the making and publication of the analyst reports may be relevant to whether the “material information” which it is alleged CNP was required to disclose to the market was “generally available” and / or was known to the market (and therefore was not material). If that is correct (and I accept that it is), then CNP are not entitled to pick and choose which material the Court should consider. If it is relevant, then it is admissible unless excluded by one of the exclusion rules. In the present application, the only basis of exclusion upon which CNP sought to rely was s 136 of the Evidence Act. Section 136 of the Evidence Act entitled “General discretion to limit use of evidence” provides:The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:(a) be unfairly prejudicial to a party; or(b)be misleading or confusing.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.