FEDERAL COURT OF AUSTRALIA
Martin v Hillier (No 2) [2021] FCA 958
Appeal from: Hillier v Martin (No 4) [2021] FCA 710 File number: SAD 137 of 2021 Judgment of: ANDERSON J Date of judgment: 12 August 2021 Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal – discovery – whether Xero database constituted a single document – whether Xero database directly relevant to the quantification of equitable compensation – alternatively, if Xero database is a document, whether judge acted unreasonably by disregarding confidentiality of documents – whether error of fact – whether error of law – application for leave to appeal dismissed with costs Legislation: Federal Court Rules 2011 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 16 Date of hearing: 6 August 2021 Counsel for the Applicant: Mr S Ower SC Solicitor for the Applicant: Norman Waterhouse Counsel for the Respondent: Mr R Whitington QC with Mr O’Leary Solicitor for the Respondent: Sykes Bidstrup ORDERS
SAD 137 of 2021
BETWEEN: VICTORIA MARTIN
ApplicantAND: JAMES HILLIER
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
12 AUGUST 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal will be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J
Introduction
The applicant in this matter, Ms Victoria Martin (applicant) seeks leave to appeal from an interlocutory decision of the primary judge on 25 June 2021, and the written reasons published on 29 June 2021, where the primary judge made orders for discovery of electronic financial records of a business controlled by the applicant called Nordburger Operations Pty Ltd.
The applicant now seeks leave to appeal from the orders of the primary judge on the grounds stated in the draft notice of appeal: affidavit of Stephen Williams filed 12 July 2021; exhibit SBW2.
On 12 July 2021, Besanko J granted a stay of the order for production.
The background facts relevant to this proceeding are set out in detail in the primary judge’s reasons for judgment: Hillier v Martin (No 4) [2021] FCA 710 (Reasons) at [4], [5], [11] and [12] - [20].
The principles relevant to an application for leave to appeal were not in dispute between the parties.
The application of the following principles are in issue in this proceeding.
First, whether in the circumstances, the decision of the primary judge was attended by sufficient doubt to warrant it being reconsidered by the Full Court of…
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- Martin v Hillier (No 2) [2021] FCA 958
- Case
- [2021] FCA 958
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CaseChat Overview and Summary
The court examined whether the primary judge correctly identified the discoverable document as the collection of financial data on the database rather than the Xero software. It was concluded that the primary judge's decision was not attended by sufficient doubt to warrant reconsideration by the Full Court. The court found that the primary judge's reasons explained the direct relevance of the information on the database to Mr Hillier's claim, and there was no error in the primary judge's reasoning. The proposed grounds of appeal did not identify any basis upon which the discovery orders could be challenged.
The court dismissed the application for leave to appeal, finding that the primary judge's decision did not contain sufficient doubt to warrant reconsideration by the Full Court. The applicant's proposed seven grounds of appeal did not identify any error in the primary judge's reasoning which was attended by sufficient doubt to warrant further consideration. The application for leave to appeal was dismissed with costs.
ORDERS:
1. The application for leave to appeal will be dismissed with costs.
Orders
Orders of the court
1. The application for leave to appeal will be dismissed with costs.
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
Established by: ANDERSON J
It was also not in dispute between the parties that the usual restraint in matters of practice and procedure should be shown, and that, to the extent the order for production was an exercise of discretion, the principles in House v The King (1936) 55 CLR 499 at [505] apply: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at [177].Consideration I am not satisfied that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court. I am of this view for the reasons that follow. First, I do not accept the applicant’s submission that the primary judge held that the Xero programme and the files stored within it in their entirety were a single document within the meaning of r 20.14(1) and Schedule 1 of the Federal Court Rules 2011 (Cth) (Rules). The primary judge’s Reasons make plain that the relevant discoverable document was the collection of financial data on the database and not the Xero software which enabled the underlying database to be accessed. The applicant made the submission that regard should be had to the primary judge’s use of the word “document” in the singular (in reference to the Xero programme) at certain points in the judgment. The applicant submits that this evinces that the primary judge found that the Xero programme should be viewed as a single document. The applicant submitted that the primary judge erred in making an order that the financial data on the Xero database should be discoverable as a single document in its entirety rather than as multiple documents, some of which may not be subject to discovery. The applicant submitted that this finding creates an issue with respect to production of the database for discovery as it places the onus of identifying which parts of the database are directly relevant on the applicant in this proceeding, rather than the onus being on the respondent to identify this. I reject this argument. The primary judge made a clear finding that the database was directly relevant, and the onus must be placed on the applicant to show that there is a proper basis for this not to be produced in full. Second, the reasons given by the primary judge at [27] to [48] explain why the financial data and information contained on the database (which was accessed by the Xero software) was directly relevant to Mr Hillier’s (respondent) claim that he is entitled to a share of the profits of the alleged joint venture which he conducted with the applicant. The primary judge at [27] to [48] of the Reasons considered the relevance of the information on the database by reference to the matters pleaded in the proceeding and concluded that that information was directly relevant and therefore discoverable by the applicant. The primary judge’s Reasons at [48] make plain that the Xero database is directly relevant to this proceeding. The primary judge concluded that, to the extent that the files stored on the database do contain any information that is not directly relevant, this does not denude it of its quality as a discoverable document. I agree with the primary judge’s assessment. The reasoning of the primary judge does not disclose any error nor is the decision of the primary judge attended by sufficient doubt to warrant it being reconsidered by a Full Court. I am also satisfied that the proposed seven grounds of appeal outlined in the draft notice of appeal do not identify any basis upon which the discovery orders made by the primary judge could be challenged and, as a consequence, the proposed grounds of appeal do not identify any error in the primary judge’s reasoning which is attended by sufficient doubt to warrant further consideration by a Full Court.