McIlwain v Ramsey Food Packaging Pty Ltd

[2005] FCA 282

FEDERAL COURT OF AUSTRALIA

McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 282

PETER LESLIE McILWAIN v RAMSEY FOOD PACKAGING PTY LTD, RAMSEY FOOD PACKAGING NO. 2 PTY LTD, RAMSEY BUTCHERING SERVICES PTY LTD, RAMSEY FOOD SERVICES PTY LTD
Q 66 OF 2003

KIEFEL J
BRISBANE
16 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q66 OF 2003

BETWEEN:	PETER LESLIE MCILWAIN APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT
RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT
RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT
RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT

JUDGE:	KIEFEL J
DATE OF ORDER:	16 MARCH 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The orders of 3 December 2004 be vacated.

2.The respondents have seven days within which to file any amended defence deleting par 130 and correcting par 131(vi).

3.In the event that those amendments are not made, the respondents are required to respond to the request for particulars made on 20 December 2004 within 30 days from today’s date. 

4.Regardless as to whether amendments are made, the respondents give verified discovery of the documents requested by the applicant dated 20 December 2004 within sixty (60) days from today.

5.In the event, however, that par 130 is deleted, the respondents are not required to give discovery of those documents referred to in par 1.5 of the request. 

6. The applicant file and serve any affidavits of reply within 60 days of receipt of the lists, by way of discovery.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q66 OF 2003

BETWEEN:	PETER LESLIE MCILWAIN APPLICANT
AND:	RAMSEY FOOD PACKAGING PTY LTD FIRST RESPONDENT
RAMSEY FOOD PACKAGING NO. 2 PTY LTD SECOND RESPONDENT
RAMSEY BUTCHERING SERVICES PTY LTD THIRD RESPONDENT
RAMSEY FOOD SERVICES PTY LTD FOURTH RESPONDENT

JUDGE:	KIEFEL J
DATE:	16 MARCH 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In this matter, I am satisfied that both the request for particulars of par 130 and 131(vi) of the defence and the request for discovery are justified.  I should add that I would have been more impressed with the respondents’ objections now taken, if they had been made earlier and if they hadn’t asserted that they simply did not wish to undertake this task because trial dates had not been allocated.  In any event having considered the objections taken, I consider that there is no substance to them.

2. The request for particulars relates to a factual situation asserted by the respondents in par 130 of the defence which they would have to justify.  Paragraph 131(vi) refers to a particular person who ought to be identified, as requested.  I am however mindful of the request made by counsel appearing for the respondents, that it may be that the respondents did not intend to put forward the case as I understand it to be, and that they ought to be given an opportunity to reconsider these paragraphs.  I intend to give them that opportunity.

3. In relation to discovery, as I have discussed with counsel for the respondents, it is not oppressive that the discovery sought is extensive and detailed and that it will involve a great deal of work and costs, although the Courts are conscious of these matters when the Court comes to consider whether it could be said that the documents sought fairly relate to the issues in the proceedings. 

4. The issue of the documents relating to the historical production of the works would appear to me to be relevant not just by reference to the issues in the proceedings but also, as I am told, by reference to the affidavit of Mr Ramsey for the respondents.  The financial statements sought relate to issues of profitability of the plant and are therefore relevant to the issue of the grounds the respondents had for termination of the workforce.  Personnel files are required with respect to the individuals referred to in the statement of claim.  Counsel for the applicants have pointed out that if par 130 is taken out of the defence, then par 1.5 of the request for particulars will no longer be required.  If the allegation however remains, I am satisfied that the documents sought are necessary to be produced.  My orders will therefore be:

   1.The orders of 3 December 2004 be vacated.

   2.The respondents have seven days within which to file any amended defence deleting par 130 and correcting par 131(vi).

   3.In the event that those amendments are not made, the respondents are required to respond to the request for particulars made on 20 December 2004 within 30 days from today’s date. 

   4.Regardless as to whether amendments are made, the respondents give verified discovery of the documents requested by the applicant dated 20 December 2004 within sixty (60) days from today.

   5.In the event, however, that par 130 is deleted, the respondents are not required to give discovery of those documents referred to in par 1.5 of the request. 

   6. The applicant file and serve any affidavits of reply within 60 days of receipt of the lists, by way of discovery.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            16 March 2005

Counsel for the Applicant:	G C Martin SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	A C Barlow
Solicitor for the Respondents:	Hannigans Lawyers
Date of Hearing:	16 March 2005
Date of Judgment:	16 March 2005