FEDERAL COURT OF AUSTRALIA
Lowden v Elliott Harvey Securities Ltd [2016] FCA 18
File numbers: QUD 254 of 2012
QUD 494 of 2013Judge: EDELMAN J Date of judgment: 2 February 2016 Catchwords: PRACTICE AND PROCEDURE – informal applications for discovery and inspection of documents held by non-parties – Corporations Act 2001 (Cth) s 486 – non-parties not given reasonable notice and not present at the hearing – applications adjourned and conferral required – reasons provided to structure the approach to be taken to the applications – issues regarding legal professional privilege, documents provided by mistake – application for default judgment – appropriate to grant springing order Legislation: Corporations Act 2001 (Cth) ss 9, 486, 511(1)(b)
Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 5.23(2) 20.23(1)
Cases cited: Barnes v Addy (1874) LR 9 Ch App 244
Eaves v Hickson (1861) 30 Beav 136; (1861) 54 ER 840
Lion-Dairy & Drinks Pty Limited v Sinclair Knight Merz Pty Limited [2014] FCA 114
Date of hearing: 2 February 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 40 Counsel for the Applicant: Mr B D Chappell Solicitor for the Applicant: Archibald & Brown Counsel for the Third Respondent: Ms Kerrie Guy appeared in person Counsel for the Fourth Respondent: Mr Jeffrey Anthony Stella appeared in person Counsel for the Fifth Respondent: Mr Gerald Birt appeared in person ORDERS
QUD 254 of 2012 BETWEEN: ROBERT LOWDEN (and others named in the schedule)
First Applicant
AND: ELLIOTT HARVEY SECURITIES LTD ACN 089 156 605 (and others named in the schedule)
First Respondent
JUDGE:
EDELMAN J
DATE OF ORDER:
2 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The informal applications for inspection and discovery from non-parties be adjourned to a date to be fixed.
2.Unless the fourth respondent complies with the requirements of orders 1 and 2 made on 13 October 2015 by 4 pm on 12 February 2016 and order 3 by 4 pm on 26 February 2016, then the applicants shall be entitled to enter judgment against the fourth respondent in the form of the relief sought in the originating process for QUD254/2012 filed 28 May 2012, and the originating process for QUD494/2013 filed 31 July 2013.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 494 of 2013 BETWEEN: NORMAN AUGUST ALEX RAYNEL (and others named in the schedule)
First Applicant
AND: KERRIE DAWN GUY (and others named in the schedule)
First Respondent
JUDGE:
EDELMAN J
DATE OF ORDER:
2 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The informal applications for inspection and discovery from non-parties be adjourned to a date to be fixed.
2.Unless the fourth respondent complies with the requirements of orders 1 and 2 made on 13 October 2015 by 4 pm on 12 February 2016 and…
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- Case
- [2016] FCA 18
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicants should be granted the right to inspect and discover documents from non-parties who were neither given reasonable notice nor present at the hearing. Additionally, the court examined the implications of documents being provided by mistake and how this might affect the discovery process. Another significant issue was whether the applicants were entitled to a default judgment against Mr Stella for his failure to comply with previous court orders. The court also deliberated on the appropriateness of granting a springing order for default judgment under the Federal Court Rules.
The court decided to adjourn the applications for inspection and non-party discovery to allow the applicants to consider reformulating their applications and for the liquidators to respond. Regarding the default judgment application against Mr Stella, the court found that while his failure to comply with orders and his lack of response to the applicants' solicitors was disrespectful and had caused delays, it was inappropriate to grant default judgment at that stage. However, given Mr Stella's position as an unrepresented litigant, the court deemed it appropriate to grant a springing order. This order would permit the applicants to enter judgment against Mr Stella if he failed to comply with specific orders by set deadlines.
In conclusion, the court issued an order adjourning the applications for inspection and non-party discovery to a future date. It also established a springing order for default judgment against Mr Stella if he did not meet specified compliance deadlines by certain dates. The court's decision balanced the need for procedural fairness and the interests of justice with the practicalities of ensuring compliance from all parties involved.
Orders
Orders of the court
1. The informal applications for inspection and discovery from non-parties be adjourned to a date to be fixed.
2. Unless the fourth respondent complies with the requirements of orders 1 and 2 made on 13 October 2015 by 4 pm on 12 February 2016 and order 3 by 4 pm on 26 February 2016, then the applicants shall be entitled to enter judgment against the fourth respondent in the form of the relief sought in the originating process for QUD254/2012 filed 28 May 2012, and the originating process for QUD494/2013 filed 31 July 2013.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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