JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2009
DATE OF JUDGMENT:	24 February 2009
CASE MAY BE CITED AS:	Re AWB Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 70	Revised 6 March 2009

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PRACTICE & PROCEDURE – Plaintiff seeking civil penalty – Plaintiff’s application for a stay – Common issue of fact and law with related civil penalty proceedings - Whether stay in the interests of justice – Application for stay dismissed - Order 9.12 of the Supreme Court (General Civil Procedure) Rules 2005 - s 29(2) of the Supreme Court Act 1986

PRACTICE & PROCEDURE – Application for an extension of time for discovery – Extension granted.

A & L Silvestri Pty Ltd v The CFM & U (2005) 226 ALR 247
Bishopsgate Insurance Australia v Deloitte, Haskins and Sells [1999] 3 VR 863
Business and Professional Leasing Pty Ltd v Dannawi [2008] NSWSC 902
Commonwealth v Cockatoo Dockyard Pty Ltd (2003) 1 DDCR 1
Hughes Motor Service Pty Ltd v Wang Computer Ltd (1978) 35 FLR 346
Imaging Applications v Vero Insurance [2008] VSC 178
Kirby v Centro Properties Ltd [2008] FCA 1505
Main Road Property Group v Pelligra & Sons [2007] VSC 43
McMahon v Gould (1982) 7 ACLR 202
Re AWB Limited (2008) 68 ACSR 374
Silbermann v CGU Insurance (2003) 47 ACSR 21
Spitfire Nominees Ltd v Thompson & Hall [1999] VSC 12

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J O'Bryan SC with Mr P D Crutchfield & Mr C H Truong	The Australian Securities and Investments Commission
For the Defendant	Mr D G Collins SC with Mr G P Mullaly & Ms M Tittensor	Galbally & O’Bryan Solicitors

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 2

SHOULD THE PROCEEDINGS BE STAYED?........................................................................... 5

DISCOVERY..................................................................................................................................... 10

HIS HONOUR:

INTRODUCTION

On 19 December 2007, the Australian Securities Investment Commission commenced proceedings against the defendant Andrew Alexander Lindberg and five other senior officers of AWB Limited. ASIC seeks declarations, civil penalties and an injunction against each of the defendants alleging contravention of ss 180(1) and 181(1) of the Corporations Act 2001 whilst an officer of AWB by breaching his duties under the Corporations Act2001 in relation to AWB’s wheat sale contracts with Iraq under the United Nations Oil-for-Food Program.

After two directions hearings in February and April 2008, Mr Lindberg and the other defendants applied for a stay of the proceedings. The basis of the stay and further details of the claims against Mr Lindberg are to be found in my decision of 12 November 2008 in Re AWB Limited.[1] I stayed the proceedings against the other five defendants essentially because on the evidence before me, it was likely criminal proceedings would be brought against them.
[1](2008) 68…

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 Re AWB Limited (No 2)

Details

AGLC: Re AWB Limited (No 2) [2009] VSC 70
Case: [2009] VSC 70
Decision Date: 24 February 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Re AWB Limited (No 2) was heard, where the plaintiff sought a civil penalty. The plaintiff applied for a stay in the proceedings due to a related case with common issues of fact and law. The court was required to determine whether such a stay would be in the interests of justice. The plaintiff also sought an extension of time for discovery of documents, which was subsequently granted.

The court considered the application for a stay under Order 9.12 of the Supreme Court (General Civil Procedure) Rules 2005 and s 29(2) of the Supreme Court Act 1986. It examined relevant case law, including A & L Silvestri Pty Ltd v The CFM & U and Bishopsgate Insurance Australia v Deloitte, Haskins and Sells, among others. The court found that the stay was not in the interests of justice and dismissed the application. The reasoning was based on the need for efficient resolution of common issues in related cases and the potential for prejudice to other parties.

The court's decision was grounded in the principles of procedural fairness and the importance of finality in legal proceedings. The dismissal of the stay application allowed the case to proceed, ensuring that the court could address the merits of the plaintiff's claim without unnecessary delay or duplication. The extension of time for discovery was granted to facilitate the preparation of the case, recognising the complexity of the issues involved.

The final orders of the court were that the application for a stay was dismissed, and the application for an extension of time for discovery was granted. This decision ensured that the proceedings could progress efficiently while maintaining the integrity of the judicial process.

Orders