Phoenix Eagle Company Pty Ltd v Ardrey [No 2] - [2016] WASC 417

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PHOENIX EAGLE COMPANY PTY LTD -v- ARDREY [No 2] [2016] WASC 417

CORAM: KENNETH MARTIN J

HEARD: 8 NOVEMBER 2016 & ON THE PAPERS

DELIVERED : 21 DECEMBER 2016

FILE NO/S: CIV 3072 of 2011

BETWEEN: PHOENIX EAGLE COMPANY PTY LTD
Plaintiff
AND
WILLIAM JAMES ARDREY
Defendant

Catchwords:

Practice and procedure - CMC List action - Directions - Freezing order - Related criminal proceedings - Criminal convictions in District Court matter set aside on appeal - Retrial ordered - Request for categories of documents by plaintiff - Defendant acting in person - Retrial pending - Deferment of discovery until retrial outcome known - Turns on own facts

Legislation:

Nil

Result:

Orders given

Category: B

Representation:

Counsel:

Plaintiff: Mr P Ward
Defendant: In person via interstate telephone link

Solicitors:

Plaintiff: Williams + Hughes
Defendant: In person

Case(s) referred to in judgment(s):

Andrew Koh Nominees Pty Ltd (as trustee for KL Unit Trust) v Pacific Corporation Ltd [No 3] [2010] WASC 248
Ardrey v The State of Western Australia [2016] WASCA 154
McMahon v Gould (1982) 7 ACLR 202
Phoenix Eagle Company Pty Ltd v Ardrey [2016] WASC 175

KENNETH MARTIN J: A directions hearing was convened in this long-running matter on 8 November 2016.
For the purposes of the hearing, the plaintiff provided a minute of proposed orders (filed 7 November 2016) supported by an affidavit of Clara Elisabeth Hagan sworn 7 November 2016. The defendant, Dr Ardrey, acting in person, participated in the directions hearing via a telephone link to Queensland, where he is currently based. He also provided his own version of a minute of proposed orders for the directions hearing, part of which seeks a discharge or variation of freezing orders which I had previously issued in August 2015 against him and which orders have continued after then. See, generally, Phoenix Eagle Company Pty Ltd v Ardrey [2016] WASC 175 [6] - [13].
The freezing orders still in place were issued at a time when Dr Ardrey had the benefit of legal representation. Arguments occurred seeking those freezing orders in the wake of Dr Ardrey's conviction on 3 March 2015 before a jury in the District Court of Western Australia in respect of various fraud offences associated with his former position as a director of the plaintiff.
Since the issuance of the freezing orders Dr Ardrey has, in effect, represented himself before me in numerous directions hearings, frequently appearing over a telephone link to Acacia Prison.
I have case managed this matter since August 2015 and the matter has progressed upon a basis that Dr Ardrey had been pursuing an appeal to the Court of Appeal against his District Court convictions. On 1 September 2016 the Court of Appeal of Western Australia (Buss P, Mazza and Mitchell JJA) delivered their reasons for decision in Ardrey v The State of Western Australia [2016] WASCA 154, effectively allowing Dr Ardrey's appeal against his convictions but, significantly, ordering a…

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 Phoenix Eagle Company Pty Ltd v Ardrey [No 2] 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: [2016] WASC 417
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

The case of Phoenix Eagle Company Pty Ltd v Ardrey [No 2] involved a dispute over discovery of documents in a civil action, with the defendant, Dr Ardrey, acting in person and facing a retrial on criminal charges. The plaintiff sought various categories of documents, while Dr Ardrey argued for a deferral of discovery until his retrial was resolved. The court considered whether to stay the civil proceedings in light of the impending criminal retrial and the potential impact on Dr Ardrey's ability to prepare for both matters.

The legal issues centred on whether the discovery of documents in the civil case should be deferred until the outcome of the criminal retrial was known. This involved balancing the need for the civil proceedings to progress against the practicalities and potential burdens on Dr Ardrey, who was representing himself and had significant personal challenges, including health issues and reliance on Centrelink benefits.

The court found that, given the circumstances, it was appropriate to defer the discovery of documents until after the outcome of the criminal retrial. This decision was based on the principle that the court should not unduly impede the progress of a civil action, but also that it should not impose undue burdens on a party, particularly when they are acting in person and facing significant challenges. The court referenced principles from Andrew Koh Nominees Pty Ltd (as trustee for KL Unit Trust) v Pacific Corporation Ltd [No 3] [2010] WASC 248, which outline factors to consider in such situations.

The final orders of the court were to defer issuing orders for the discovery of documents until after the outcome of the criminal retrial. This decision allowed the court to balance the interests of both parties while taking into account the specific circumstances of Dr Ardrey. There was also liberty to apply to the plaintiff regarding the discovery of documents after the retrial outcome.

Orders

Orders of the court

Full text does not contain this section.

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

During argument my attention was drawn to Andrew Koh Nominees Pty Ltd (as trustee for KL Unit Trust) v Pacific Corporation Ltd [No 3] [2010] WASC 248 [55], where Allanson J conveniently collected the applicable principles in relation to stay applications arising in circumstances where there is an intersection or potential intersection between matters to be canvassed in a civil litigation and pending criminal proceedings. A disinclination of the court to interrupt the ordinary progression of a civil action to trial as had been expressed by Wootten J in McMahon v Gould (1982) 7 ACLR 202 was noted. I will refer to, without repeating, the 12 principles collected by Allanson J in the reasons at [55], including possibly relevant factors enumerated under guideline 10: the proximity of the criminal hearing; the possibility of a miscarriage of justice by disclosure of a defence; the burden upon a defendant of preparing for both sets of proceedings concurrently; and the conduct of the defendant in terms of whether he is an initiator or respondent in the civil action. Likewise, guideline 11 notes the effect on the plaintiff as a factor needing to be considered and weighed as against the effect upon the defendant. I have reviewed the categories of discovered material sought under par 3 of the plaintiff's minute. On the face of it, the categories, which are said to be non‑exhaustive, present as identifying prima facie relevantly discoverable materials for a trial. During the course of his submissions Mr Ward, counsel for the plaintiff, helpfully directed me to various paragraphs of the pleadings which provide a foundations in relevance for the 12 categories of discovery currently sought. In the ordinary course of events, I would have issued orders for the discovery of such material as is sought (which was on the basis of a list of documents verified on oath provided within 28 days). However, those factors need to be balanced against the imminence of Dr Ardrey's pending retrial, the fact that he acts in person at least in the present action, that he is currently receiving Centrelink benefits, that he suffers (I am satisfied) from a number of health issues, and the aggregate burdens which would be imposed upon him by requiring him to provide discovery at the same time as giving his attention to the matters necessary for him to be prepared to meet his retrial. Those factors, on balance, presently lead me to the view that, bearing in mind the relatively pedestrian pace at which this action has moved since it was commenced in 2011, where an amended statement of claim from the plaintiff was only finalised as at 20 July 2016, that reluctant as I am to impede the progress of the action to a final resolution, in the interests of justice, I see no other fair course at present, taking account of Dr Ardey's circumstances, other than to defer issuing orders for discovery in respect of the categories currently sought until after the outcome of the presently pending retrial of Dr Ardrey in 2017. There will be liberty to apply to the plaintiff in that regard.