Procter v Kalivis (No 2) - [2009] FCA 1517

FEDERAL COURT OF AUSTRALIA
Procter v Kalivis (No 2) [2009] FCA 1517
EVE LYNNE PROCTER and BRENDA MAUREEN PROCTER v EVANGELO KALIVIS, ACN 088 370 966 PTY LTD (ACN 088 370 996), PATRICIA ANNE DABROWSKI, TIMOTHY JOHN DABROWSKI and BERRI DEVELOPMENTS PTY LTD (ACN 126 373 939)
SAD 210 of 2008
BESANKO J
17 DECEMBER 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 210 of 2008

BETWEEN:
EVE LYNNE PROCTER
First Applicant/First Cross Respondent

BRENDA MAUREEN PROCTER
Second Applicant/Second Cross Respondent

AND:
EVANGELO KALIVIS
First Respondent/First Cross Claimant

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

PATRICIA ANNE DABROWSKI
Third Respondent/Second Cross Claimant

TIMOTHY JOHN DABROWSKI
Fourth Respondent

BERRI DEVELOPMENTS PTY LTD (ACN 126 373 939)
Fifth 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.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 210 of 2008

BETWEEN:
EVE LYNNE PROCTER
First Applicant/First Cross Respondent

BRENDA MAUREEN PROCTER
Second Applicant/Second Cross Respondent

AND:
EVANGELO KALIVIS
First Respondent/First Cross Claimant

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

PATRICIA ANNE DABROWSKI
Third Respondent/Second Cross Claimant

TIMOTHY JOHN DABROWSKI
Fourth Respondent

BERRI DEVELOPMENTS PTY LTD (ACN 126 373 939)
Fifth Respondent

JUDGE:

BESANKO J

DATE:

17 DECEMBER 2009

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is a proceeding between Eva Lynne Procter and Brenda Maureen Procter, applicants, and Evangelo Kalivis, ACN 088 370 966 Pty Ltd, Patricia Anne Dabrowski, Timothy John Dabrowski and Berri Developments Pty Ltd, respondents. The proceeding was commenced on 19 December 2008. Before they had filed defences, the respondents brought an application seeking an order that the Statement of Claim, or, in the alternative, certain paragraphs in it be struck out, or, in the further alternative, that the applicants provide particulars of a number of allegations in the Statement of Claim. The applicants brought an application seeking orders that the respondents provide discovery before particulars. On 12 August 2009, I made the following orders, relevantly:
“1.On or before Wednesday 2 September 2009, the Respondents are to make discovery in terms of paragraph 1 of the Applicants’ Amended Notice of Motion dated 1 April 2009.
2.The Applicants are granted leave to file an Amended Statement of Claim on or before Wednesday 30 September 2009.
3.The Respondents are to file a Defence to the Applicants’ Amended Statement of Claim, together with any Cross Claim, on or before Wednesday 28 October 2009.”
My reasons for making those orders are set out in Procter v Kalivis [2009] FCA 795. Those reasons for judgment also contain a description of the various allegations made by the applicants against the…

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) [2009] FCA 1517
Case: [2009] FCA 1517
Decision Date: 17 DECEMBER 2009

CaseChat Overview and Summary

The case of Procter v Kalivis (No 2) involved an application for discovery of documents in the context of an action concerning unauthorised use of funds. The respondents argued against the need for the discovery of specific documents, contending that the primary concern at that stage was whether there was an unauthorised use of funds, rather than the purpose for which the funds were applied post-transfer. The applicants, however, sought to expand the scope of discovery to include documents that could reveal the ultimate destination of the funds in question. The court was required to determine whether the existing discovery order should be amended to include the proposed additional documents, as sought by the applicants.

The legal issues before the court revolved around the scope and purpose of discovery in the context of actions concerning unauthorised use of funds. Specifically, the court had to consider whether the discovery order should be limited to documents showing the transfer of funds or should also encompass documents that could reveal the subsequent application of those funds. The respondents' contention was that the existing discovery order was sufficient for the initial stage of the proceedings, focusing solely on the transfer of funds, whereas the applicants argued that a broader discovery was necessary to ascertain the ultimate use of the funds.

The court concluded that the respondents' approach was too narrow and technically focused on the transfer of funds rather than the broader context of the unauthorised use. It was held that the applicants were entitled to discover documents that could indicate the ultimate fate of the funds, thereby justifying the addition of the proposed paragraph 2 to the existing discovery order. The court found the applicants' position to be reasonable, as it aimed to address the core issue of the unauthorised use of funds comprehensively. Consequently, the court ruled in favour of the applicants' proposed amendments to the discovery order.

In light of these reasons, the court granted leave for the parties to make further submissions regarding the appropriate orders to be made in accordance with the court's decision. The court's decision underscored the importance of a broad approach to discovery in actions concerning unauthorised use of funds, ensuring that all relevant information is brought to light to address the substantive issues in the case.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

The respondents submit that they should not be required to discover the documents referred to in the proposed paragraph 2 because the critical question at this stage is whether there was an unauthorised use of funds. They submit that the existing discovery order was made in the context of discovery before particulars and whether the transfer of funds was authorised is the critical consideration. As I understood it, they accept that at a later point in the proceeding, it may be necessary to investigate the purpose for which the funds were applied after they were withdrawn from the bank accounts identified in proposed paragraph 2. This seems to me to be an unduly technical approach in the circumstances of this case. The applicants are entitled to discovery at this stage of such documents as will indicate what has become of the relevant funds, not simply to documents which show that they have been paid into other bank accounts. Proposed paragraph 2 should be added to the existing discovery order. Conclusion In my opinion, the documents described in the applicants’ proposed amendments to the existing discovery order should be discovered. I will hear the parties as to the appropriate orders.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 210 of 2008

JUDGE:	BESANKO J
DATE OF ORDER:	17 DECEMBER 2009
WHERE MADE:	ADELAIDE

JUDGE:	BESANKO J
DATE:	17 DECEMBER 2009
PLACE:	ADELAIDE