JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April, 7 and 14 May 2009
DATE OF JUDGMENT:	28 May 2009
CASE MAY BE CITED AS:	Re AWB Limited (No 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 209

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CORPORATIONS – Civil penalty proceedings - Application to further amend amended statement of claim – Application would lead to vacation of trial date – Prejudice to defendant - Application refused – Relevance of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146.

CORPORATIONS - Civil penalty proceedings - Application for non-party discovery – ASIC filed list of documents it intends to rely on at trial – ASIC seeks to obtain discovery of further documents not on list – Discovery process will lead to vacation of trial – Delay in making application for non-party discovery – Whether application for non-party discovery should be dismissed.

PRACTICE AND PROCEDURE – Application to further amend amended statement of claim – Civil penalty procedure – Relevant factors – Relevance of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 – Rule 36.01 of Supreme Court (General Civil Procedure ) Rules 2005.

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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
For AWB Limited	Mr C M Scerri QC with Mr N McAteer	Allens Arthur Robinson

ACCC v Emerald Ocean Distributors Pty Ltd [2004] FCA 949
ACCC v Pacific Dunlop Ltd [2001] FCA 740
ACCC v Trading Post Australia Pty Ltd [2008] FCA 1298
ASIC v Fortescue Metals Group Ltd [No 3] [2009] FCA 430
ASIC v Rich [2005] NSWSC 940
ASIC v Sydney Investment House Equities Pty Ltd [2007] NSWSC 1456
AWB Limited (No 1) [2008]VSC 473
AWB Limited (No 2) [2009]VSC 70
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCQA 1623
Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379
Chameleon Mining NL v Murchison Metal Ltd [2009] FCA 137
Equuscorp Pty Ltd v Wilmoth Field Warne (2007) 18 VR 250
Ketteman v Hansel Properties Limited [1987] AC 198
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Queensland v J L Holdings Pty Limited (1997) 189 CLR 146
Winn v Brahe [2009] VSC 93

TABLE OF CONTENTS

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

HISTORY OF THE PROCEEDINGS............................................................................................. 3

THE INTERLOCUTORY STEPS.................................................................................................... 5

THE PROPOSED AMENDMENTS............................................................................................. 11

DISCOVERY..................................................................................................................................... 16

CONCLUSION................................................................................................................................. 22

HIS HONOUR:

INTRODUCTION

In this proceeding, the Australian Securities and Investments Commission (ASIC) seeks declarations, civil penalties and injunctions against Andrew Alexander Lindberg. ASIC alleges that, whilst Mr Lindberg was the managing…

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 3)

Details

AGLC: Re AWB Limited (No 3) [2009] VSC 209
Case: [2009] VSC 209
Decision Date: 28 May 2009

CaseChat Overview and Summary

The matter of Re AWB Limited (No 3) involved the Australian Wheat Board Limited (AWB), with the Australian Securities and Investments Commission (ASIC) acting as the respondent. The dispute arose from civil penalty proceedings initiated by ASIC against AWB. The Federal Court of Australia was tasked with deciding two significant applications: the first was AWB's application to further amend an already amended statement of claim, and the second was AWB's application for non-party discovery of additional documents not listed by ASIC.

The central legal issues before the court were whether AWB's application to further amend the statement of claim should be granted and whether the application for non-party discovery should proceed. The court needed to consider the potential prejudice to ASIC if the trial date were vacated due to the amendments and the discovery process, as well as the relevance of the precedent set by Queensland v J L Holdings Pty Limited (1997) 189 CLR 146, which underscores the importance of maintaining trial dates. Additionally, the court examined Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2005, which governs applications to amend pleadings in civil penalty proceedings.

The court determined that the application to further amend the statement of claim should be refused because it would lead to the vacation of the trial date, causing undue prejudice to ASIC. The court noted that the amendment process had already been extended once, and any further amendments would likely result in further delays. Regarding the application for non-party discovery, the court held that ASIC had already filed a list of documents it intended to rely on at trial, and AWB's delay in making the application for additional documents should result in the application being dismissed. The court emphasised the importance of adhering to the procedural rules and maintaining the efficiency of the trial process. The final orders reflected the court's decisions, denying both applications and maintaining the integrity of the scheduled trial date.

Orders