New Aim Pty Ltd v Leung (No 3)

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FEDERAL COURT OF AUSTRALIA

New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295  

File number(s): VID 547 of 2021
Judgment of: O’CALLAGHAN J
Date of judgment: 26 October 2023
Catchwords: PRACTICE AND PROCEDURE – where Full Court made order that the “matter be remitted for retrial” – question of the proper construction of that order considered – relevant principles discussed – importance of difference between ss 28(1)(c) and 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) considered – where applicant sought further discovery
Legislation: Federal Court of Australia Act 1976 (Cth) s 28
Cases cited:

Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 6) [2023] FCA 1276

Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324

Fernando v Commonwealth (2014) 231 FCR 251

Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; (2022) 403 ALR 498

New Aim Pty Ltd v Leung [2021] FCA 1329

New Aim Pty Ltd v Leung [2022] FCA 722

New Aim Pty Ltd v Leung [2023] FCAFC 67; (2023) 410 ALR 190
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 37
Date of hearing: 26 October 2023
Counsel for the Applicant: Mr LA Merrick SC and Ms M Evetts
Solicitors for the Applicant: Corrs Chambers Westgarth
Counsel for the First, Fourth and Fifth Respondents: Mr KA Loxley and Mr T Diaz
Solicitors for the First, Fourth and Fifth Respondents: Zeal Legal Group

ORDERS

VID 547 of 2021
BETWEEN:

NEW AIM PTY LTD

Applicant
AND:

MAN HUNG (JACK) LEUNG

First Respondent

(JENNY) LI YINGXUE

Second Respondent

LEI (RAY) XIAO (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

26 OCTOBER 2023

THE COURT ORDERS THAT:

1.Within 14 days of the date of this order, the first, fourth and fifth respondents each give discovery of documents within the following categories:

(a)All documents recording the use or the disclosure of the New Aim Supplier Information (or any part of it) (as defined in the applicant’s interlocutory application filed on 18 September 2023) by the first respondent since 27 June 2022.

(b)All purchase orders and/or invoices for products that the fifth respondent has procured using the New Aim Supplier Information (or any part of it) since 27 June 2022 (Sourced Products).

(c)All purchase orders and/or invoices relating to the acquisition of Sourced Products by the fourth respondent from the fifth respondent.

2.The proceeding be listed for case management on a date to be fixed.

3.The costs of today’s hearing be paid by the first, fourth and fifth respondents.

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


REASONS FOR JUDGMENT

O’CALLAGHAN J

  1. For the second time in a week, the issue of the proper construction of an ambiguous “remittal” order made by a Full Court has arisen.  (The…

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Details
Case
[2023] FCA 1295
Decision Date

CaseChat Overview and Summary

The Federal Court considered an application for discovery made by New Aim Pty Ltd against Leung and others, which followed a decision by the Full Court that the matter be remitted for retrial. The case involved a dispute over the proper construction of the Full Court's order, particularly whether it required a retrial or a new trial. The applicants argued for a new trial, allowing for a fresh examination of the issues, while the respondents contended for a retrial, which would be bound by the prior proceedings' findings.

The Court delved into the differences between ss 28(1)(c) and 28(1)(f) of the Federal Court of Australia Act 1976, highlighting the significance of these distinctions. Section 28(1)(c) deals with remitting a proceeding for further hearing, while s 28(1)(f) pertains to granting a new trial, a concept rooted in historical legal practice. The Court emphasised that a new trial, as per s 28(1)(f), restarts the trial process completely, freeing the parties from the constraints of the original trial. This interpretation means that the second trial is not bound by prior decisions and allows for the introduction of new evidence and arguments.

In light of the above, the Court determined that the Full Court's order should be construed as a grant of a new trial rather than a retrial. This decision allowed the applicants to seek further discovery, as requested, to prepare adequately for the new trial. The Court ordered specific documents to be disclosed by the respondents and set a case management date. Additionally, it ruled that the costs of the hearing were to be borne by the respondents.

The final orders mandated that the first, fourth, and fifth respondents provide detailed documentation within 14 days, including records of the use or disclosure of specific information, purchase orders, and invoices. The proceeding was scheduled for case management, and the respondents were directed to cover the costs of the hearing. This ruling underscores the importance of correctly interpreting appellate court orders to ensure fair and effective litigation processes.

Orders

Orders of the court

1. Within 14 days of the date of this order, the first, fourth and fifth respondents each give discovery of documents within the following categories:

(a) All documents recording the use or the disclosure of the New Aim Supplier Information (or any part of it) (as defined in the applicant’s interlocutory application filed on 18 September 2023) by the first respondent since 27 June 2022.

(b) All purchase orders and/or invoices for products that the fifth respondent has procured using the New Aim Supplier Information (or any part of it) since 27 June 2022 (Sourced Products).

(c) All purchase orders and/or invoices relating to the acquisition of Sourced Products by the fourth respondent from the fifth respondent.

2. The proceeding be listed for case management on a date to be fixed.

3. The costs of today’s hearing be paid by the first, fourth and fifth respondents.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Sub-sections 28(1) and (2) of the Federal Court Act provide:28 Form of judgment on appeal(1)Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:(a) affirm, reverse or vary the judgment appealed from;(b)give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;(d)set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;(f)grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or(g)award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.(2)It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.(Emphasis added). Section 30 of the Federal Court Act further provides:30 New trials(1)In an appeal in which the Court grants a new trial, the Court may impose such conditions on a party, and may direct such admissions to be made by a party, for the purpose of the new trial as are just.(2) Where the Court grants a new trial in a suit, the Court:(a)may grant it, either generally or on particular issues only, as it thinks just; and(b)may order that testimony of a witness examined at the former trial may be used in the new trial in the manner provided in the order. A number of things can be said about the remittal order in issue here. First, s 28 of the Federal Court Act does not refer to a “matter”. It is a “proceeding” that is remitted in the case of s 28(1)(c), or a “cause” in the case of s 28(1)(g). Secondly, ss 28 does not refer to a “retrial”. Instead, s 28(1)(f) refers to a “new trial”, which is the term used in the cases from the early 19th century onwards (see below at paragraph [15]). Likewise, s 30 also refers to a new trial, not a retrial. Thirdly, s 28(1)(f) does not use the expression “remit” – the Court may “grant” a new trial. And fourthly, as in Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 6), the Full Court did not say whether it sought to invoke ss 28(1)(c) or (f). The difference matters. If a new trial is granted pursuant to s 28(1)(f), the trial starts again de novo, so that existing issues can be abandoned and new ones raised; the parties are not bound by how they conducted the original trial; and they may improve their case by leading new evidence or by making new arguments. And where the same issues arise in both trials, the judge at the second trial is not hampered by any decision at the original one.

Ratio Decidendi

Legal Principle Established

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