Procter v Kalivis (No 2) - [2010] FCA 663

FEDERAL COURT OF AUSTRALIA
Procter v Kalivis (No 2) [2010] FCA 663

Citation: Procter v Kalivis (No 2) [2010] FCA 663

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

File number: SAD 91 of 2009

Judge: BESANKO J

Date of judgment: 25 June 2010

Catchwords:
DISCOVERY – application to cross-examine deponents of affidavits of discovery – where further affidavits of discovery contained statements about documents no longer in possession, custody or power of parties

Held: application dismissed – cross-examination allowed in very limited circumstances – no express requirement in Rules to state searches or inquiries made – no reason to conclude that reasonable searches not made.

Legislation: Federal Court Rules O 15A r 6

Cases cited: Mulley v Manifold (1959) 103 CLR 341 referred to
Procter v Kalivis (2009) 263 ALR 461 referred to
Re McGorm, Ex parte Co Operative Building Society of South Australia (1989) 86 ALR 275 referred to

Date of hearing: 17 June 2010

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Counsel for the Applicants: Mr D J Blight

Solicitor for the Applicants: Wallmans Lawyers

Counsel for the Respondents: Mr D J Fagan SC

Solicitor for the Respondents: Fitzpatrick Solicitors Pty Ltd

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

PATRICIA ANNE DABROWSKI
Third Respondent

TIMOTHY JOHN DABROWSKI
Fourth Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

25 JUNE 2010

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for the order identified in paragraph 1 of the applicants’ notice of motion dated 20 November 2009 be dismissed.
2.The applicants pay the respondents’ costs of the application referred to in paragraph 1.

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 Federal Law Search on the Court’s website.

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

PATRICIA ANNE DABROWSKI
Third Respondent

TIMOTHY JOHN DABROWSKI
Fourth Respondent

JUDGE:

BESANKO J

DATE:

25 JUNE 2010

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

On 19 June 2009, the applicants issued an application against the respondents for information discovery under O 15A r 6 of the Federal Court Rules (“the Rules”). On 7 August 2009, the respondents filed and served a List of Documents. One list was filed and served and each of the four respondents swore…

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.

Continue reading Procter v Kalivis (No 2)

Details

AGLC: Procter v Kalivis (No 2) [2010] FCA 663
Case: [2010] FCA 663
Decision Date: 25 June 2010

CaseChat Overview and Summary

The applicants sought to cross-examine deponents of affidavits of discovery on the basis that the respondents had failed to disclose certain documents. The case was before the Supreme Court of Victoria. The applicants, Procter, sought to compel the respondents, Kalivis, to allow cross-examination of the deponents of affidavits of discovery. The respondents argued that the applicants were attempting to circumvent the requirements of the court's earlier order, which had directed that discovery would be by way of affidavits only.

The court considered whether there were circumstances in which cross-examination of deponents of affidavits of discovery could be allowed. The court held that cross-examination could be allowed in very limited circumstances, but found that the applicants had not demonstrated that such circumstances applied in this case. The court also considered whether the respondents had failed to make reasonable inquiries for documents, but found that there was no express requirement in the Rules to state searches or inquiries made, and no reason to conclude that the respondents had not made reasonable searches.

The application was dismissed, with the applicants ordered to pay the respondents' costs of the application. The court held that there were no circumstances in which cross-examination of the deponents of affidavits of discovery should be allowed in this case, and that the applicants had not demonstrated that the respondents had failed to make reasonable inquiries for documents. The court's decision highlights the importance of complying with court orders and the limited circumstances in which cross-examination of deponents of affidavits of discovery may be allowed.

Orders

Orders of the court

1. The application for the order identified in paragraph 1 of the applicants’ notice of motion dated 20 November 2009 be dismissed.

2. The applicants pay the respondents’ costs of the application referred to in paragraph 1.

Note:

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

Full text does not contain this section.

Citation:		Procter v Kalivis (No 2) [2010] FCA 663
Parties:		EVE LYNNE PROCTER, BRENDA MAUREEN PROCTER and DOC-IT PTY LTD (ACN 088 334 534) v EVANGELO KALIVIS, ACN 088 370 996 PTY LTD (ACN 088 370 996), PATRICIA ANNE DABROWSKI and TIMOTHY JOHN DABROWSKI
File number:		SAD 91 of 2009
Judge:		BESANKO J
Date of judgment:		25 June 2010
Catchwords:		DISCOVERY – application to cross-examine deponents of affidavits of discovery – where further affidavits of discovery contained statements about documents no longer in possession, custody or power of parties Held: application dismissed – cross-examination allowed in very limited circumstances – no express requirement in Rules to state searches or inquiries made – no reason to conclude that reasonable searches not made.
Legislation:		Federal Court Rules O 15A r 6
Cases cited:		Mulley v Manifold (1959) 103 CLR 341 referred to Procter v Kalivis (2009) 263 ALR 461 referred to Re McGorm, Ex parte Co Operative Building Society of South Australia (1989) 86 ALR 275 referred to
Date of hearing:	17 June 2010
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicants:	Mr D J Blight
Solicitor for the Applicants:	Wallmans Lawyers
Counsel for the Respondents:	Mr D J Fagan SC
Solicitor for the Respondents:	Fitzpatrick Solicitors Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 91 of 2009

JUDGE:	BESANKO J
DATE OF ORDER:	25 JUNE 2010
WHERE MADE:	ADELAIDE

JUDGE:	BESANKO J
DATE:	25 JUNE 2010
PLACE:	ADELAIDE