Mining Service Vehicles Australia Rental Division Pty Ltd v Jones

[2010] WASC 368

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MINING SERVICE VEHICLES AUSTRALIA RENTAL DIVISION PTY LTD -v- JONES [2010] WASC 368

CORAM:   ACTING MASTER CHAPMAN

HEARD:   28 SEPTEMBER 2010

DELIVERED          :   10 DECEMBER 2010

FILE NO/S:   COR 78 of 2010

BETWEEN:   MINING SERVICE VEHICLES AUSTRALIA RENTAL DIVISION PTY LTD

Plaintiff

AND

PETER JOHN JONES
First Defendant

JONES MINING INNOVATION PTY LTD
Second Defendant

Catchwords:

Corporations law - Obligation of a former director to provide information - Stay of District Court proceedings whilst information is provided - Turns on own facts

Legislation:

Corporation Act 2001 (Cth), s 180

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr I A Morison

First Defendant              :     Ms H A McGeorge

Second Defendant         :     Mr M J Feutrill

Solicitors:

Plaintiff:     Michael Rogers & Associates

First Defendant              :     Cullen Babington Hughes

Second Defendant         :     Slee Anderson & Pidgeon

Case(s) referred to in judgment(s):

Nil

1. ACTING MASTER CHAPMAN:  The plaintiff by way of originating process filed on 21 May 2010 seeks orders in the following terms:

   1.An order that the First Defendant file and serve an affidavit stating what the First Defendant knows of the matters and issues the subject of the following action in the District Court of Western Australia at Bunbury namely Bunbury number 18 of 2009 Jones Mining Innovation Pty Ltd (ACN 125 580 761) v Mining Service Vehicles Australia Rental Division Pty Ltd (A.C.N. 103 459 650) ('action').

   2.Directions for the examination by the Plaintiff of the First Defendant upon his affidavit.

   3.All such other directions and all such enquiries as the Court may think fit to issue and make.

   4.An order staying the action until further order of this Honourable Court.

   5.The Defendants pay the costs of these proceedings.

2. On 16 June 2010 the plaintiff filed a document titled 'Plaintiff's Request of the First Defendant for Sworn Information as to the Plaintiff's Dealings with the Second Defendant During the First Defendant's Tenure as a Director of the Plaintiff'.  That request seeks answers on oath to certain questions which relate to the statement of claim in District Court proceedings 18 of 2009 (the District Court proceedings) and identifies the information the plaintiff is seeking in the originating process.

3. Two affidavits have been filed by, it appears, the second defendant albeit on their face they state they were filed by the plaintiff.  Counsel for the second defendant did not press for those affidavits to be read in relation to this application and so I have not referred to them.

4. The plaintiff sought to rely on the affidavit of Carl Terrence Hansen sworn 19 May 2010.  A statement of claim in the District Court proceedings is found on pages 31 to 41 of that affidavit.  The claim in the District Court proceedings is founded on three contracts which are pleaded in the statement of claim. 

5. In the District Court proceedings the defendant (the plaintiff in this action) filed a chamber summons which is found at pages 98 to 99 of the affidavit of Mr Hanson.  The orders sought are as follows:

   1.The Defendant have leave pursuant to O36Br2(6) to issue to Peter John Jones a Subpoena to Attend to Give Evidence requiring him to appear at the hearing of the Plaintiff's application for summary judgment dated 9 October 2009 to give evidence upon the matters arising in the said application.

   2.Pursuant to O36r2(2) Zane Peter Jones attend the said hearing for cross‑examination upon his affidavit sworn 15 October 2009.

   3.Cost of this application be in the cause.

6. That application was dismissed.  The first defendant contends that the information sought by way of this originating process was dealt with by Registrar Kingsley in the District Court proceedings and therefore cannot be re‑litigated.  It is, in my view, clear that the orders sought in the District Court proceedings related to the summary judgment application and would not necessarily preclude the bringing of this originating process.

7. The first defendant has provided information to the plaintiff without the need of an order of this court.  The plaintiff has, on that information, been able to file and serve a defence in the District Court proceedings which pleads to each and every allegation contained in the statement of claim.

8. The first defendant has now been joined as a third party in the District Court proceedings and thus will be required to comply with the rules of that court in relation to interlocutory matters.  Counsel for the first defendant argues that the issues before me could and should have been raised in the District Court proceedings and they can still be raised in those proceedings given the third party notice.  The application which was brought in the District Court proceeding only related to the summary judgment application and would not preclude an application being made in that action.  Further, the first defendant contends the plaintiff may subpoena the first defendant to give evidence in the District Court proceedings. 

9. I am not persuaded that the orders sought are necessary for the plaintiff to be able to properly defend itself in the District Court proceedings and consider that that action is the appropriate forum in which the plaintiff may address the issues raised in the matter before me.  It follows that it would not be appropriate to stay the District Court proceedings.

Conclusion

1. If the court has power to make the orders sought, and I make no finding one way or the other in that regard, I am of the view that these issues are best dealt with in the District Court proceedings and thus I would decline to make any of the orders sought.