Nowra Radiology Pty Ltd v Macintosh

FEDERAL COURT OF AUSTRALIA

Nowra Radiology Pty Ltd v Macintosh [2020] FCA 731

File number:

NSD 2178 of 2018

Judge:

STEWART J

Date of judgment:

26 May 2020

Catchwords:

PRACTICE AND PROCEDURE – competing applications regarding adoption or rejection of referee report – whether adoption of referee report consistent with the overarching purpose pursuant to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – relevant principles – whether findings made in the referee report relevant to the issues in dispute – whether expert has the relevant expertise – whether referee identified rational basis for findings made – order for the adoption of referee report with variations made

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Cases cited:

Chocolate Factory Apartments Limited v Westpoint Finance Pty Limited [2005] NSWSC 784

Sheehan v Lloyds Names Munich Re: Syndicate Ltd [2017] FCA 1340

Stone v Ebeid [2020] FCA 343

Weston v Rajan [2019] FCA 1455

Date of hearing:

26 May 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

40

Counsel for the Applicants:

C Conde

Solicitor for the Applicants:

Access Law Group

Counsel for the Respondent:

J Mee

Solicitor for the Respondent:

Cullen Macleod

ORDERS

NSD 2178 of 2018

BETWEEN:

NOWRA RADIOLOGY PTY LTD (ACN 166 387 980)

First Applicant

NOWRA RADIOLOGY OPERATIONS PTY LTD (ACN 603 000 675)

Second Applicant

JANET ELIZABETH MACINTOSH

Third Applicant

AND:

PETER DOUGLAS MACINTOSH

Respondent

JUDGE:	STEWART J
DATE OF ORDER:	26 MAY 2020

THE COURT ORDERS THAT:

1.The report of Dr Allan Watt as referee dated 10 December 2019 is adopted pursuant to rule 28.67(1) of the Federal Court Rules 2011 (Cth) subject to the following variations:

1.1. Paragraphs [4.5.2] on page 8, [4.5.3] on page 8, [4.5.4] on page 9 and [14.16] on page 11 are deleted;

1.2.Paragraphs [4.2.1] on page 7 and [4.12] on page 10 are to reflect that Peter Macintosh is the registrant for the domain name nowraradiology.com and the Fidelity Trust is the registrant for the domain name nowraradiology.com.au.

2.The parties’ competing interlocutory applications filed on 20 and 21 February 2020 are otherwise dismissed.

3.The parties are to bear their own costs on the interlocutory applications.

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

REASONS FOR JUDGMENT
(Revised from transcript)

STEWART J:

On the competing interlocutory applications

1. By consent orders on 2 October 2019, I appointed Dr Allan Watt, a digital forensic expert, as referee to answer a series of questions that had been identified by the parties as being useful to pose to Dr Watt.  There were about 10 questions on behalf of each side of the case.  I shall come to the questions shortly.

2. Dr Watt reported by way of an expert report that was filed on 28 January 2020.  The applicants move on an application to adopt Dr Watt’s report and the respondent moves…