Procter v Kalivis

Case [2009] FCA 1518

FEDERAL COURT OF AUSTRALIA

Procter v Kalivis [2009] FCA 1518

PRACTICE AND PROCEDURE – application for leave to cross-examine deponent of affidavit of discovery and for orders for further and better discovery, production of documents and particular discovery – where proceedings had not commenced – whether O 15, r 8 of the Federal Court Rules applies to O 15A r 6 – whether affidavit of discovery insufficient  

Held – application allowed in part – order for further affidavit of discovery but no order for cross-examination – order for production of documents the subject of a claim for privilege – reasonable grounds for being fairly certain that other relevant documents exist – insufficiency of affidavit of discovery appeared on its face.

Federal Court Rules O 15 r 8, O 15A, O 15A rr 6, 10    

Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749 discussed
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 cited
Beecham Group Ltd v Bristol-Myers Co [1979] VR 273 discussed
British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] AC 673 discussed
Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389 discussed
Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 discussed
Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 cited
Hall v Truman, Hanbury & Co (1885) 29 Ch D 307 discussed
Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731 cited
IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 discussed
Lyell v Kennedy (1884) 27 Ch D 1 discussed
Mulley v Manifold (1959) 103 CLR 341 discussed
Noel v Noel 1 D.J. & S 468 discussed
Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997) discussed
Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 cited

EVE LYNNE PROCTER, BRENDA MAUREEN PROCTER and DOC-IT PTY LTD ACN 088 334 534 v EVANGELO KALIVIS, ACN 088 370 966 PTY LTD (ACN 088 370 996), PATRICIA ANNE DABROWSKI and TIMOTHY JOHN DABROWSKI

SAD 91 of 2009

BESANKO J
17 DECEMBER 2009
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 91 of 2009
BETWEEN:

EVE LYNNE PROCTER
First Applicant

BRENDA MAUREEN PROCTER
Second Applicant

DOC-IT PTY LTD ACN 088 334 534
Third Applicant
AND:

EVANGELO KALIVIS
First Respondent

ACN 088 370 966 PTY LTD (ACN 088 370 996)
Second Respondent

PATRICIA ANNE DABROWSKI
Third Respondent

TIMOTHY JOHN DABROWSKI
Fourth Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

17 DECEMBER 2009

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The parties have leave to make submissions as to the appropriate orders in light of these reasons.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


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AGLC
Procter v Kalivis [2009] FCA 1518
Case
[2009] FCA 1518
Decision Date

CaseChat Overview and Summary

Procter v Kalivis involved a dispute where the plaintiff sought an order for the defendants to produce certain documents for inspection. The case was heard in a relevant Australian court, which was tasked with determining whether the defendants should comply with the plaintiff's request for discovery of specific documents. The legal issues centered on the scope of discovery in civil proceedings, the relevance and admissibility of the documents in question, and the defendants' obligations under the rules of court to provide full and frank disclosure.

The court carefully considered the arguments presented by both parties, examining the nature and content of the documents in question and the potential impact on the proceedings. The judges assessed whether the documents listed in Schedule 1 Part 2 of the Amended List of Documents were necessary for the fair administration of justice and whether the defendants had adequately justified their refusal to produce them. The court concluded that the defendants were indeed required to produce these documents, as they were relevant to the matters in issue and necessary for the proper conduct of the case.

After weighing the evidence and arguments, the court ruled in favor of the plaintiff. It found that the defendants had failed to sufficiently justify their refusal to produce the documents and that their production was necessary for the fair administration of justice. Consequently, the court ordered the defendants to produce the specified documents for inspection by the plaintiff. The court also granted the plaintiff leave to make submissions on the appropriate orders to formalise the decision.

Orders

Orders of the court

1. The parties have leave to make submissions as to the appropriate orders in light of these reasons.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J
I will make an order that the respondents produce for inspection the documents in Schedule 1 Part 2 of the List of Documents.Conclusion In my opinion, an order should be made that each respondent file a further affidavit of discovery. Furthermore, an order should be made that the documents in Schedule 1 Part 2 of the Amended List of Documents filed and served on 14 October 2009 should be produced to the applicants by the respondents. I will hear the parties as to the precise terms of the orders to be made.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.