Re Lamond (No 4) - [2017] FCA 820

FEDERAL COURT OF AUSTRALIA
Lamond (No 4) [2017] FCA 820

File number: SAD 333 of 2016

Judge: BESANKO J

Date of judgment: 5 July 2017

Date of publication of reasons: 24 July 2017

Catchwords:
PRACTICE AND PROCEDURE – consideration of an application seeking orders for production of documents pursuant to prior search orders, r 7.01 of the Federal Court Rules 2011 (Cth) and discovery and non-party discovery rules – where certain documents now sought to be produced were not in existence at the time the search was carried out – where the true nature of the orders sought is one for discovery and inspection – where there are only sufficient grounds to support orders for non-party discovery as against two respondents – where the Court is otherwise not satisfied that the proposed applicant has established the documents sought are, or are likely to be, directly relevant.

PRACTICE AND PROCEDURE – consideration of an application seeking orders for production of documents pursuant to Notices to Produce under r 20.31 – whether affidavits in which the documents are mentioned are “spent” where the applications they respond to were not pursued by the proposed applicant – where affidavits are to be relied upon in another proceeding – where documents are mentioned sufficiently for the purposes of the rule.

PRACTICE AND PROCEDURE – consideration of an application seeking orders for additional searches of seized material – where the previous orders for access were made by consent whereas the orders now sought are opposed – consideration of the decision in Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 – where documents are being sought as substitute for discovery or in tandem with, or as an adjunct to, the discovery process.

CORPORATIONS – consideration of an application seeking an order under r 7.01 or s 1324 of the Corporations Act 2001 (Cth) that a director authorise payment of employee wages and entitlements as and when requested – where director proffered undertaking which is fair and reasonable – where application seeks an order under r 7.01 or s 1324 of the Act that the company reimburse the proposed applicant a sum of money – where company is not represented before the Court – where the directors are engaged as bitter protagonists in litigation before the Court – where such an order would involve the Court recognising and enforcing a debt.

Legislation:
Corporations Act 2001 (Cth) ss 237, 1324

Federal Court Rules 2011 (Cth) rr 7.01, 7.42, 7.43, 20.13, 20.15, 20.23, 20.31

Cases cited:
Lamond [2017] FCA 180

Lamond (No 2) [2017] FCA 548

Lamond (No 3) [2017] FCA 610

Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201

Date of hearing: 14 June 2017

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 33

Counsel for the Prospective Applicant: Mr C Munt

Solicitor for the Prospective Applicant: Scanlon Carroll Pty Ltd

Counsel for the Prospective First, Third, Fourth, Sixth,…

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 Lamond (No 4)

Details

AGLC: Re Lamond (No 4) [2017] FCA 820
Case: [2017] FCA 820
Decision Date: 5 July 2017

CaseChat Overview and Summary

The case of Re Lamond (No 4) involved multiple respondents who were subject to various applications for discovery and production of documents, as well as other orders. The applications were made by the prospective applicant, who sought various documents and information from the respondents in the context of ongoing litigation. The respondents were represented by legal counsel, and the court considered their submissions in response to the applications.

The court was required to determine whether certain orders for production of documents should be granted, whether certain affidavits could be considered in another proceeding, and whether additional searches of seized material should be permitted. The court also had to consider whether an order should be made for a director to authorise payment of employee wages and entitlements, and whether the company should reimburse the proposed applicant a sum of money.

The court found that the true nature of the orders sought was one for discovery and inspection, and that there were only sufficient grounds to support orders for non-party discovery as against two respondents. The court was not satisfied that the proposed applicant had established the documents sought were, or were likely to be, directly relevant. The court also found that the affidavits in which the documents were mentioned were not "spent" as they were to be relied upon in another proceeding, and that the documents were mentioned sufficiently for the purposes of the rule. The court further found that the proposed applicant had not established that the documents were being sought as a substitute for discovery or in tandem with, or as an adjunct to, the discovery process.

The court made several orders, including orders for discovery and production of documents, and orders excluding certain annexures from the order as to confidentiality. The court also refused certain orders sought by the proposed applicant, and made orders relating to an undertaking to be executed by the respondents.

Orders

Orders of the court

1. The Prospective Tenth Respondent, Kerry Hill, make discovery to the Prospective Applicant within 7 days, of full copies of all invoices, including usage details relating to her mobile telephone number 0413 148 042 for the period 1 July 2016 to 15 November 2016.

2. Bernadine Joy Manser make discovery to the Prospective Applicant, within 7 days, of full copies of all invoices, including usage details relating to her mobile telephone number 0407 235 345 for the period 1 July 2016 to 15 November 2017.

3. The Green Triangle database referred to in paragraph 114 of the affidavit of the Prospective Third Respondent, Christopher John Manser, sworn 6 January 2017, be produced to the Prospective Applicant within 7 days by the independent computer experts in its native electronic form as at 12 December 2016, or otherwise as at the present time, to the extent it is reasonably possible for them to do so, in connection with the Notice to Produce addressed to the Prospective First and Third Respondents filed on 13 January 2017. For the sole purpose of the production by the independent computer experts of the Green Triangle database in its native electronic form, the Prospective First Respondent is to provide the independent computer experts within two business days the administrator username and password for the Prospective First Respondent’s SaleG8 cloud-based software.

4. The email correspondence from Garth John Manser to Christopher John Manser referred to in paragraph 56 of the affidavit of the Prospective Fourth Respondent, Garth John Manser, sworn 6 January 2017, be produced to the Prospective Applicant pursuant to the Notice to Produce addressed to the Prospective Fourth Respondent and filed on 13 January 2017.

5. The Prospective Second Respondent, Owen Pettingill, make discovery to the Prospective Applicant within 14 days of full copies of all bank statements for account number 125299640 in his name held with BankSA for the period 1 July 2008 to 20 December 2013.

6. The Prospective Second Respondent, Owen Pettingill, make discovery to the Prospective Applicant within 14 days of full copies of all bank statements for the Maxi Saver account number 128452840 held in his name with BankSA for the period 15 October 2013 to 28 February 2017.

7. Save and except for SLS41, 43, 80, 81, 85, 86 and 87 the annexures to the affidavit of Sharelle Louisa Staff lodged electronically with the Court on 21 March 2017 at 4:12 pm (ACDT) be excluded from the order as to confidentiality comprising order 35 of the Orders made on 19 December 2016.

8. The Interlocutory Application dated 13 April 2017 be otherwise dismissed.

9. As for the Interlocutory Application dated 24 May 2017, the Prospective Second and Fifth Respondents execute the undertaking amended in paragraph 3 to delete “7 days” and substitute “21 days” signed by me and dated today’s date, and serve and send a copy of the undertaking to the Court by 4:00 pm on Friday, 7 July 2017.

10. The order sought in paragraph 5 of the Interlocutory Application dated 24 May 2017 be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.

File number:	SAD 333 of 2016
Judge:	BESANKO J
Date of judgment:	5 July 2017
Date of publication of reasons:	24 July 2017
Catchwords:	PRACTICE AND PROCEDURE – consideration of an application seeking orders for production of documents pursuant to prior search orders, r 7.01 of the Federal Court Rules 2011 (Cth) and discovery and non-party discovery rules – where certain documents now sought to be produced were not in existence at the time the search was carried out – where the true nature of the orders sought is one for discovery and inspection – where there are only sufficient grounds to support orders for non-party discovery as against two respondents – where the Court is otherwise not satisfied that the proposed applicant has established the documents sought are, or are likely to be, directly relevant. PRACTICE AND PROCEDURE – consideration of an application seeking orders for production of documents pursuant to Notices to Produce under r 20.31 – whether affidavits in which the documents are mentioned are “spent” where the applications they respond to were not pursued by the proposed applicant – where affidavits are to be relied upon in another proceeding – where documents are mentioned sufficiently for the purposes of the rule. PRACTICE AND PROCEDURE – consideration of an application seeking orders for additional searches of seized material – where the previous orders for access were made by consent whereas the orders now sought are opposed – consideration of the decision in Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 – where documents are being sought as substitute for discovery or in tandem with, or as an adjunct to, the discovery process. CORPORATIONS – consideration of an application seeking an order under r 7.01 or s 1324 of the Corporations Act 2001 (Cth) that a director authorise payment of employee wages and entitlements as and when requested – where director proffered undertaking which is fair and reasonable – where application seeks an order under r 7.01 or s 1324 of the Act that the company reimburse the proposed applicant a sum of money – where company is not represented before the Court – where the directors are engaged as bitter protagonists in litigation before the Court – where such an order would involve the Court recognising and enforcing a debt.
Legislation:	Corporations Act 2001 (Cth) ss 237, 1324 Federal Court Rules 2011 (Cth) rr 7.01, 7.42, 7.43, 20.13, 20.15, 20.23, 20.31
Cases cited:	Lamond [2017] FCA 180 Lamond (No 2) [2017] FCA 548 Lamond (No 3) [2017] FCA 610 Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201
Date of hearing:	14 June 2017
Registry:	South Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Prospective Applicant:	Mr C Munt
Solicitor for the Prospective Applicant:	Scanlon Carroll Pty Ltd
Counsel for the Prospective First, Third, Fourth, Sixth,…