PRACTICE AND PROCEDURE - preliminary discovery - Federal Court Rules, O 4 r 17 and O 15A r 3 - application for order that respondents be orally examined as to description of persons concerned in authorship and distribution of Open Letter - notice of motion in same terms filed with application - whether final or interlocutory proceeding - admissibility of hearsay evidence - Evidence Act 1995, s 75 - whether terms of that section satisfied - whether evidence adduced of source of representation -discretionary considerations.
Federal Court Rules, O 4 r 17, O 15A r 3 Evidence Act 1995, s 75
Allstate Life Insurance Cov Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 (FCA/Lindgren J) Barton v Osborne (unreported, SC/Nagle J, 20 February 1975) Brouwer v Titan Corporation Ltd (unreported, FCA/FC, 7 March 1997) ExleyvWyong Shire Council (unreported, SC/Master Allen, 10 December 1976) John Fairfax and Sons Ltdv Cojuangco (1988) 165 CLR 346 StewartvMiller [1979] 2 NSWLR 128 (SC/Sheppard J) Survival & Industrial Equipment (Newcastle) Pty LtdvOwners of the vessel “Alley Cat”(1992) 36 FCR 129 (FCA/Sheppard J) Taylor vOsborne [1973] 1 NSWLR 52 Wentworth v Wentworth (unreported, SC/Santow J, 17 April 1997)
LEVIS & ORS v McDONALD & ANOR
No NG 125 of 1997 Lindgren J Sydney 30 April 1997
NOT FOR GENERAL DISTRIBUTION
NO QUESTION OF PRINCIPLE
IN THE FEDERAL COURT OF AUSTRALIA
)
)
NEW SOUTH WALES DISTRICT REGISTRY
) No. NG 125 of 1997
)
GENERAL DIVISION
)
BETWEEN:
GRAHAM DONALD LEVIS First Applicant
DANIEL ARMSTRONG Second Applicant
DENIS LEE Third Applicant
AND:
ALICE McDONALD First Respondent
BRIAN JOHN DALY Second Respondent
CORAM:
LINDGREN J
PLACE:
SYDNEY
DATED:
30 APRIL 1997
REASONS FOR JUDGMENT (Ex tempore)
INTRODUCTION By their application filed on 20 February 1997, the applicants, (“Messrs Levis, Armstrong and Lee”), who are partners in a pharmacy business known as the “Kareela Community Pharmacy” conducted at the corner of Bates Drive and Freya Street, Kareela, seek, relevantly, an order under Order 15A of the Federal Court Rules as follows:
“1.An order that the Respondents attend before this Honourable Court to be examined in relation to the description of the person concerned in the devising, writing and circulation of the open letter sent to Kareela residents on or about 15 January 1997, a copy of which is annexed hereto and marked ‘A’.”
Annexed to this judgment is a copy of annexure "A" referred to in para 1 (“the Open Letter”).
With their application, Messrs Levis, Armstrong and Lee filed a notice of motion. The notice of motion seeks an order expressed in terms identical to those of para 1 of the application, not an order expressed as an interlocutory order. As will appear later, in my view the application seeks final, not interlocutory, relief. That conclusion has evidentiary consequences to which I will refer. As well, it shows that the motion was incompetent and must be dismissed as such.
EARLIER PROCEEDING…
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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AGLC
Levis v McDonald [1997] FCA 349
Case
[1997] FCA 349
Decision Date
CaseChat Overview and Summary
The applicants, Messrs Levis, Armstrong and Lee, sought an order under Order 15A r 3 of the Federal Court Rules for the respondents, Mr Daly and Ms McDonald, to be examined as to their involvement in the authorship and distribution of an Open Letter sent to Kareela residents. The applicants suspected the respondents were involved in the distribution of the letter, which they claimed contained misleading and defamatory statements. The applicants filed a notice of motion with the application, which Lindgren J found was incompetent and dismissed it. The court also dismissed the application, finding that the proceeding was final, not interlocutory, and that hearsay evidence was therefore inadmissible. Even if the proceeding were interlocutory, the court would not make the order sought due to the lack of a prima facie case and the applicants' ability to identify at least one person sufficiently for the purpose of commencing a proceeding against that person. Lindgren J ordered the applicants to pay the respondents' costs.
Lindgren J carefully considered the nature of the proceeding and the admissibility of evidence, concluding that the proceeding was final and the hearsay evidence inadmissible. The court also found that the applicants had not established a prima facie case for relief and had already identified at least one person sufficiently for the purpose of commencing a proceeding against them. The court dismissed the application and ordered the applicants to pay the respondents' costs. This decision highlights the importance of properly characterizing a proceeding and ensuring that evidence is admissible before making an order under Order 15A r 3 of the Federal Court Rules.