FEDERAL COURT OF AUSTRALIA
Polis v Zombor (No 3) [2019] FCA 1477
File number: VID 217 of 2018 Judge: O'BRYAN J Date of judgment: 5 September 2019 Date of publication of reasons: 6 September 2019 Catchwords: PRACTICE AND PROCEDURE – preservation orders made under rule 14.11 of the Federal Court Rules 2011 (Cth) pending further application for inspection of property Legislation: Federal Court Rules 2011 (Cth) Cases cited: Date of hearing: 5 September 2019 Date of last submissions: 5 September 2019 Registry: Victoria Division: General Division National Practice Area: Commercial Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 17 Counsel for the Prospective Applicant: Mr S T Lane Solicitor for the Prospective Applicant: Enyo Lawyers Counsel for the Prospective Respondents: The First, Second and Third Prospective Respondents did not appear Counsel for Bela Gabor Zombor: Mr D C Harrison ORDERS
VID 217 of 2018 BETWEEN: HENRY PETER POLIS
Prospective Applicant
AND: LUKE MICHAEL ZOMBOR
First Prospective Respondent
LMZ PROJECTS PTY LTD ACN 603 180 016
Second Prospective Respondent
LATRME PTY LTD ACN 603 176 996
Third Prospective Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
5 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.Pursuant to Rule 14.11 of the Federal Court Rules 2011 (Cth), until 31 October 2019 BELA GABOR ZOMBOR of 19 Zebrafinch Court, Carrum Downs in the State of Victoria must preserve the following data and information stored on any mobile phone owned by him or in his possession and used by him:
(a)any and all messages transmitted (or that are transmitted after the date of these orders) between him and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of the application ‘WhatsApp’, on and from 11 December 2017;
(b)any and all messages transmitted (or that are transmitted after the date of these orders) between him and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of any other mobile messaging service (including SMS messaging), on and from 11 December 2017;
(c)the mobile or other telephone number(s) (whether Australian or international) used by LUKE MICHAEL ZOMBOR on and from 11 December 2017.
2.A copy of these orders is to be served by the Prospective Applicant on BELA GABOR ZOMBOR.
3.BELA GABOR ZOMBOR has liberty to apply to vary or discharge these orders upon giving 5 business days’ notice to the Prospective Applicant.
4.Costs are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 217 of 2018 BETWEEN: HENRY PETER POLIS
Prospective Applicant
AND: LUKE MICHAEL ZOMBOR
First Prospective Respondent
LMZ PROJECTS PTY LTD ACN 603 180 016
Second Prospective Respondent
LATRME PTY LTD ACN 603 176 996
Third Prospective Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
5 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.Pursuant to Rule 14.11 of the Federal Court Rules 2011 (Cth), until 31 October 2019 JANET…
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- AGLC
- Polis v Zombor (No 3) [2019] FCA 1477
- Case
- [2019] FCA 1477
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the prospective applicant had established a prima facie case warranting the preservation of specific data and information. This required an assessment of whether the prospective applicant demonstrated that the preservation of the requested data was necessary to prevent loss or destruction of evidence, and that the order was proportionate and reasonable. The court also needed to consider whether the orders were specific enough and whether they provided adequate notice and opportunity for the respondent to respond.
The court found that the prospective applicant had indeed demonstrated a prima facie case for the preservation of the specified data. The orders were deemed appropriate as they targeted specific data relevant to the case and were proportionate to the needs of the prospective applicant. The respondent was given adequate notice and an opportunity to respond, and the court was satisfied that the orders were specific enough to be enforceable. Consequently, the court granted the preservation orders as requested.
The final orders mandated that Janet Denise Zombor must preserve specific data and information stored on any mobile phone she owns or possesses and used by her, including WhatsApp and other messaging services, from 11 December 2017 onwards. A copy of these orders was to be served on Janet Denise Zombor, who was also granted liberty to apply to vary or discharge the orders with appropriate notice. Costs were reserved for a later determination.
Orders
Orders of the court
1. Pursuant to Rule 14.11 of the Federal Court Rules 2011 (Cth), until 31 October 2019 JANET DENISE ZOMBOR of 19 Zebrafinch Court, Carrum Downs in the State of Victoria must preserve the following data and information stored on any mobile phone owned by her or in her possession and used by her:
(a) any and all messages transmitted (or that are transmitted after the date of these orders) between her and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of the application ‘WhatsApp’, on and from 11 December 2017;
(b) any and all messages transmitted (or that are transmitted after the date of these orders) between her and LUKE MICHAEL ZOMBOR (whether in a group with other individuals or individually) by way of any other mobile messaging service (including SMS messaging), on and from 11 December 2017;
(c) the mobile or other telephone number(s) (whether Australian or international) used by LUKE MICHAEL ZOMBOR on and from 11 December 2017.
2. A copy of these orders is to be served by the Prospective Applicant on JANET DENISE ZOMBOR.
3. JANET DENISE ZOMBOR has liberty to apply to vary or discharge these orders upon giving 5 business days’ notice to the Prospective Applicant.
4. Costs be reserved.
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
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Ratio Decidendi
Legal Principle Established
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