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Re Junior Academy ELC Pty Ltd

Re Junior Academy ELC Pty Ltd

Case [2018] VSC 192 26 April 2018

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2017 00222

IN THE MATTER of JUNIOR ACADEMY ELC PTY LTD
(ACN 136 704 697)

PETER URBAN	Plaintiff
v
JUNIOR ACADEMY ELC PTY LTD (ACN 136 704 697) (AS TRUSTEE FOR GLEN EIRA ROAD (249) UNIT TRUST (ABN 54 859 835 183) & ORS (according to the attached schedule)	Defendants

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2018, supplemented by further written submissions on 26 March 2018 (defendants) and on 27 March 2018 (plaintiff)
DATE OF RULING:	26 April 2018
CASE MAY BE CITED AS:	Re Junior Academy ELC Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 192

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PRACTICE AND PROCEDURE – Notices to produce – Whether too wide and fishing – Whether any legitimate forensic purpose – Issuing the notices to produce was not an abuse of process – One category of documents set aside – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 35.08; Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573; Sharpe v Grobbel [2017] NSWSC 1065; Knights Quest Pty Ltd v Barokes Pty Ltd (2016) 113 ACSR 505.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr A Hanak	Marsh & Maher Richmond Bennison
For the Defendants	Mr J W S Peters QC Dr O Bigos	Jack Bock Lawyers

MATTHEWS JR:

Introduction

This proceeding is an application by the plaintiff Peter Urban for leave pursuant to ss 236 and 237 of the Corporations Act 2001 (Cth) (‘the Act’) to commence a proceeding in the name of the first defendant against the second to fifth defendants (‘Leave Application’). The first defendant is a company of which the plaintiff and the second and third defendants are directors, being Junior Academy ELC Pty Ltd (ACN 136 704 697) (‘CELC’). Mr Barcochva Lahmy (known as Coco Lahmy) (‘Mr Lahmy’) is the second defendant; Ms Anna Lahmy (‘Ms Lahmy’) is the third defendant; Early Childhood Management Pty Ltd (ACN 161 123 459) (‘ECM’) is the fourth defendant; and Gold Glow Pty Ltd (ACN 606 801 807) (‘Gold Glow’) is the fifth defendant.

On 18 October 2017 and 1 March 2018, the plaintiff issued notices to the defendants requiring them to produce certain categories of documents (‘First Notice’ and ‘Second Notice’ respectively, together, the ‘Notices’). On 8 February 2018, the plaintiff issued a subpoena (‘Subpoena’) on a non-party to this proceeding, being Guardian Community Early Learning Centres Pty Ltd (ACN 116 020 887) (‘Guardian’). The categories of documents sought under the Subpoena overlap with the documents sought on the Notices. The defendants have issued notices of objection to the Notices on the grounds of relevance and confidentiality. The defendants have also issued an objection to the Subpoena on…

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 Junior Academy ELC Pty Ltd

Details

AGLC: Re Junior Academy ELC Pty Ltd [2018] VSC 192
Case: [2018] VSC 192
Decision Date: 26 April 2018

CaseChat Overview and Summary

The case before the court involved a dispute between Junior Academy Early Learning Centre Pty Ltd and another party. The primary issue was whether certain notices to produce documents issued by Junior Academy were too wide, amounted to fishing expeditions, and whether they served a legitimate forensic purpose. The court had to determine if the issuance of these notices constituted an abuse of process and whether one category of documents should be set aside. The case was heard in the Supreme Court of Victoria.

The legal issues the court had to address included the scope and limitations of notices to produce under the Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 35.08, and whether the notices issued by Junior Academy were justified. The court had to consider whether the notices were too broad or served a legitimate forensic purpose. Additionally, the court had to assess if the issuance of these notices constituted an abuse of process and if one category of documents should be set aside based on the authorities cited, including Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214, Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573, Sharpe v Grobbel [2017] NSWSC 1065, and Knights Quest Pty Ltd v Barokes Pty Ltd (2016) 113 ACSR 505.

The court found that the notices to produce were not too wide or amounting to fishing expeditions and served a legitimate forensic purpose. It was determined that the issuance of the notices was not an abuse of process. However, one category of documents was set aside as it did not meet the necessary criteria. The court's reasoning was based on the relevant authorities and the specific circumstances of the case. The court concluded that while the notices were justified, the overreach in one instance warranted the setting aside of the affected category of documents.

The final orders included the dismissal of the application to set aside the notices to produce, with the exception of one category of documents, which was set aside. The court's decision balanced the need for effective discovery with the protection against unnecessary burden and expense on parties.

Orders