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Mirus Australia Pty Ltd v Gage

Mirus Australia Pty Ltd v Gage

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Case Copied 11 August 2017 77 min read

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046
Hearing dates: 8 and 9 May 2017
Decision date: 11 August 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Declare that the first defendant was in contempt of this Court by engaging in the conduct in the circumstances described in Charge 1 of the Amended Statement of Charge.
(2) Order pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that [60]-[61] of the first defendant’s defence filed on 12 November 2015 be repleaded in accordance with these reasons and that the following paragraphs or part paragraphs of the said defence be struck out as an abuse of process of the Court: [60(b)]; those parts of [63]-[73] in which the first defendant “otherwise denies” the allegation to which the paragraphs respond (such as [63(e)]); [64(d)-(h)]; [65(b)]; [65(c)]; [65(d)] (the words in the chapeau “in order to do so” and subparagraphs (v)-(vii)); [65(e)]; [65(f)] (the words “in order to maintain the confidentiality of the information”); [65(g)] (the words “and again attempted” through to the end of that sub-paragraph); [65(h)] (the words “in order to maintain the confidentiality of the information”); [65(i)-(j)]; [66(c)-(e)] (insofar as they are intended to apply to Mr Gage’s defence); [66(f)]; [67]; [68(d)]; [69(c)-(e)]; [70(d)]; [71(d)]; [71(g)]; those parts of [72] which repeat answers to [62]-[71] that are to be struck out; [72(a)-(c)]; those parts of [73] which incorporate reference to parts of the defence that are to be struck out; those parts of [92] which repeat those parts of [65(d)-(h)] which are to be struck out; those parts of [93]-[94] which incorporate reference to paragraphs of the defence to be struck out; [103]-[104]; [107(b)] and that part of [109] of the defence insofar as those paragraphs repeat paragraphs of the defence that are to be struck out.
(3) Direct the first and second defendants each to file an amended defence within 14 days, noting that the first defendant’s amended defence must accord with these reasons in relation to the paragraphs or part paragraphsof the defence the subject of the order in 2 above.
(4) List the matter before me at 9.30 am on 18 August 2017 for further directions as to the filing of evidence and listing of the matter for a sentencing hearing in respect of the contempt of court committed by the first defendant.
(5) The first defendant to pay the plaintiff’s costs of the respective notices of motion on an indemnity basis.

Catchwords:
CONTEMPT – criminal contempt – whether contempt can be committed if impugned conduct occurred prior to commencement of proceedings
PRACTICE AND PROCEDURE – abuse of process – deliberate deletion of electronic documents and records of electronic activity after commencement of proceedings – application to strike out parts of defence
Legislation Cited: Aged Care Act 1997 (Cth)
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Corporations Act 2001 (Cth), s 1317H
Evidence Act 1995 (NSW), 140

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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Details

Case: [2017] NSWSC 1046
Decision Date: 11 August 2017

CaseChat Overview and Summary

In the case of Mirus Australia Pty Ltd v Gage, the respondent, Gage, was a former employee of the applicant, Mirus Australia Pty Ltd. The dispute centred on allegations of contempt and abuse of process. Specifically, Mirus Australia alleged that Gage had committed contempt by deleting emails and documents prior to the commencement of legal proceedings. Additionally, Mirus Australia claimed that Gage had deliberately deleted electronic documents and records of electronic activity after the proceedings had commenced, which amounted to an abuse of process.

The court was required to determine whether contempt could be committed if the impugned conduct occurred prior to the commencement of proceedings. Furthermore, the court had to decide if the deliberate deletion of electronic documents and records of electronic activity after the commencement of proceedings constituted an abuse of process. The court also needed to consider whether Mirus Australia's application to strike out parts of Gage's defence was justified.

The court found that contempt could not be committed for conduct occurring before the commencement of proceedings. However, it held that the deliberate deletion of electronic documents and records of electronic activity after the commencement of proceedings did amount to an abuse of process. Consequently, the court granted Mirus Australia's application to strike out certain parts of Gage's defence, deeming them irrelevant and prejudicial. The court ordered Gage to pay costs to Mirus Australia in relation to the struck-out parts of the defence.

Orders