Outback Stores Pty Ltd v Smith

Case [2020] FCA 1785

FEDERAL COURT OF AUSTRALIA

Outback Stores Pty Ltd v Smith [2020] FCA 1785  

File number: NTD 16 of 2020
Judgment of: WHITE J
Date of judgment: 11 December 2020
Catchwords: PRACTICE AND PROCEDURE – application for a preliminary discovery order under r 7.23 of the Federal Court Rules 2011 (Cth) – whether the prospective applicant had the requisite belief that it had a right to relief in misleading and deceptive conduct, defamation and breach of confidentiality in equity – whether other elements required by r 7.23 were established – application dismissed.
Legislation:

Australian Consumer Law ss 18, 236

Competition and Consumer Act 2010 (Cth)

Parliamentary Privileges Act 1987 (Cth) s 16(3)

Uniform Defamation Acts

Federal Court Rules 1979 (Cth) O 15A, r 6

Federal Court Rules 2011 (Cth) rr 7.21, 7.22, 7.23, 16.01

Defamation Act 2006 (NT) s 8

Cases cited:

Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39; (2009) 182 FCR 124

Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451

Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1215; (2007) 164 FCR 450

EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) [2012] FCA 48; (2012) 199 FCR 533

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191

Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 257 FCR 62

Quanta Software International Pty Ltd v Computer Management Services Pty Ltd [2000] FCA 969; (2000) 175 ALR 536

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

Reeve v Aqualast Pty Ltd [2012] FCA 679

Sexpo Pty Ltd v Collective Shout Ltd [2018] FCA 544

Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73

Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [2008] FCAFC 7; (2008) 166 FCR 64

Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Division: General Division
Registry: Northern Territory
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 70
Date of last submission: 8 December 2020
Date of hearing: 2 December 2020
Counsel for the Prospective Applicant: Mr M Hoffmann QC
Solicitor for the Prospective Applicant: Minter Ellison
Counsel for the Prospective Respondents: Mr B Roberts QC with Mr T McFarlane
Solicitor for the Prospective Respondents: King & Wood Mallesons

ORDERS

NTD 16 of 2020
BETWEEN:

OUTBACK STORES PTY LTD ACN 120 661 234

Prospective Applicant
AND:

STEVE SMITH

First Prospective Respondent

ABORIGINAL INVESTMENT GROUP

Second Prospective Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

11 DECEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:   Entry of orders is dealt…

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Details
AGLC
Outback Stores Pty Ltd v Smith [2020] FCA 1785
Case
[2020] FCA 1785
Decision Date

CaseChat Overview and Summary

Outback Stores Pty Ltd sought a preliminary discovery order from the Federal Court against Smith, claiming misleading and deceptive conduct, defamation, and breach of confidentiality in equity. The court was asked to determine if Outback Stores had a requisite belief that it had a right to relief and whether the other elements required by Rule 7.23 of the Federal Court Rules 2011 were established. The court examined the evidence and arguments presented by both parties to decide whether to grant the application.

The court held that Outback Stores had not shown sufficient evidence to justify a preliminary discovery order for the third, fourth, fifth, and sixth categories of documents. The court noted that the application failed to establish the requisite belief in having a right to relief or to meet the other criteria stipulated by Rule 7.23. Consequently, the court dismissed the application and deemed it unnecessary to address the respondents' submission about the jurisdiction of the court in relation to misleading or deceptive conduct cases.

The court's decision made it unnecessary to discuss the circumstances under which the court's jurisdiction is regularly invoked or to consider the respondents' argument about the court's jurisdiction over defamation actions. The court added that the assumption underlying the respondents' submission—that a defamation action by Outback Stores would not be within the court's jurisdiction—was unfounded. The application was dismissed, and the court directed the parties to address the issue of costs.

ORDERS:
1. The application is dismissed.

Orders

Orders of the court

1. The application is dismissed.

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

For these reasons, I am not satisfied that OBS has shown an entitlement to preliminary discovery in respect of the third, fourth, fifth and sixth categories.Conclusion For the reasons given above, the application of OBS fails. This conclusion makes it unnecessary to consider the submission of the prospective respondents in reliance on Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39; (2009) 182 FCR 124 at [8]. That was that, if it is not apparent that the jurisdiction of this Court may be “regularly invoked” by reference to a cause of action based on misleading or deceptive conduct, it would not be appropriate for an order for preliminary discovery to be made. In particular, it is unnecessary to say anything about the circumstances in which the jurisdiction of this Court is “regularly invoked” – as to which see Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [15]‑[24]. It is, however, appropriate to add that an assumption on which the prospective respondents’ submission may have been based (that an action in defamation by OBS would not otherwise be within the jurisdiction of this Court) is not sound – see Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451. The application of OBS is dismissed. I will hear from the parties as to costs.

Ratio Decidendi

Legal Principle Established

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