Legal Research
Cases
Naude v DRA Global Limited

Naude v DRA Global Limited

Link copied

Case Copied 19 May 2023 20 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Naude v DRA Global Limited [2023] FCA 493

File number: WAD 43 of 2023

Judgment of: SNADEN J

Date of judgment: 19 May 2023

Catchwords: PRACTICE AND PROCEDURE – interlocutory application for non-publication orders pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) – where statement of claim alleged to disclose information subject to without-prejudice privilege – where pleading in part alleged to be scandalous, vexatious or containing bare allegations – whether non-publication orders necessary to protect against prejudice to the administration of justice – application dismissed

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) Pt VAA ss 37AA, 37AE, 37AI, 37AF, 37AG

Federal Court Rules 2011 (Cth) r 2.32

Cases cited:
Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188

David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294

Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435

Hogan v Australian Crime Commission (2010) 240 CLR 651

Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359

John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131

Keyzer v La Trobe University (2019) 165 ALD 93

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

R v Davis (1995) 57 FCR 512

Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) (2011) 193 FCR 507

The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377

Williams v Forgie (2003) 54 ATR 236

Division: Fair Work Division

Registry: Western Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 40

Date of last submissions 10 May 2023 (First to Sixth Respondents)
16 May 2023 (Applicant)

Date of hearing: Determined on the papers

Counsel for the Applicant: Mr A Pollock

Solicitor for the Applicant: Bennett Law

Counsel for the First, Second, Third, Fourth, Fifth and Sixth Respondents: Mr I Taylor SC with Ms H Millar

Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Respondents: HWL Ebsworth Lawyers

Counsel for the Seventh, Eighth and Ninth Respondents: Mr J Healy

Solicitor for the Seventh, Eighth and Ninth Respondents: Clyde & Co

Solicitor for the Tenth Respondent: Mr C Hood, Hamilton Locke

ORDERS

WAD 43 of 2023

BETWEEN:
ANDREW JAMES NAUDE

Applicant

AND:
DRA GLOBAL LIMITED

First Respondent

PETER JOHN MANSELL

Second Respondent

KATHLEEN BOZANIC (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS THAT:
1.The first-to-sixth respondents’ amended interlocutory application dated 28 April 2023 be dismissed.
2.Orders 5 and 7 of the orders made herein on 2 May 2023 be vacated with effect from 9:00 am (AWST) on Monday, 22 May 2023.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SNADEN J:

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.

Keep reading for free

Create a free CaseChat account to read Naude v DRA Global Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FCA 493
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the Federal Court of Australia, Naude, the plaintiff, has filed a proceeding against DRA Global Limited and several other respondents. The plaintiff claims damages for alleged breaches of fiduciary duty and other claims. The respondents have made an application for non-publication orders, arguing that the plaintiff's statement of claim contains information subject to without-prejudice privilege and is scandalous, vexatious, or contains bare allegations. The respondents argue that these factors necessitate non-publication orders to protect against prejudice to the administration of justice.

The court was required to determine whether the content of the plaintiff's statement of claim warranted non-publication orders. This involved assessing whether the information in the pleading was indeed privileged and whether the allegations were scandalous, vexatious, or contained bare allegations. The court considered the content of the pleading, the nature of the claims, and the potential prejudice to the administration of justice if the information were to be published. The court also considered the public interest in open justice and the principle that courts should not grant non-publication orders lightly.

The court found that the plaintiff's statement of claim did not contain information subject to without-prejudice privilege. The court also found that the allegations, while serious, were not scandalous, vexatious, or containing bare allegations. The court held that the public interest in open justice outweighed the respondents' concerns about potential prejudice to the administration of justice. The court dismissed the respondents' application for non-publication orders and vacated certain previous orders.

The final orders of the court were that the respondents' amended interlocutory application be dismissed and that certain previous orders be vacated. This decision ensures that the proceedings will continue to be open to the public, maintaining the principle of open justice.

Orders

Orders of the court

1. The first-to-sixth respondents’ amended interlocutory application dated 28 April 2023 be dismissed.

2. Orders 5 and 7 of the orders made herein on 2 May 2023 be vacated with effect from 9:00 am (AWST) on Monday, 22 May 2023.

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

Full text does not contain this section.

File number:	WAD 43 of 2023
Judgment of:	SNADEN J
Date of judgment:	19 May 2023
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for non-publication orders pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) – where statement of claim alleged to disclose information subject to without-prejudice privilege – where pleading in part alleged to be scandalous, vexatious or containing bare allegations – whether non-publication orders necessary to protect against prejudice to the administration of justice – application dismissed
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) Pt VAA ss 37AA, 37AE, 37AI, 37AF, 37AG Federal Court Rules 2011 (Cth) r 2.32
Cases cited:	Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756 Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188 David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 Hogan v Australian Crime Commission (2010) 240 CLR 651 Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 Keyzer v La Trobe University (2019) 165 ALD 93 Pigozzo v Mineral Resources Ltd [2022] FCA 1166 R v Davis (1995) 57 FCR 512 Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) (2011) 193 FCR 507 The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377 Williams v Forgie (2003) 54 ATR 236
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	40
Date of last submissions	10 May 2023 (First to Sixth Respondents) 16 May 2023 (Applicant)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr A Pollock
Solicitor for the Applicant:	Bennett Law
Counsel for the First, Second, Third, Fourth, Fifth and Sixth Respondents:	Mr I Taylor SC with Ms H Millar
Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Respondents:	HWL Ebsworth Lawyers
Counsel for the Seventh, Eighth and Ninth Respondents:	Mr J Healy
Solicitor for the Seventh, Eighth and Ninth Respondents:	Clyde & Co
Solicitor for the Tenth Respondent:	Mr C Hood, Hamilton Locke

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	19 MAY 2023