GIORGIO MASSIMO UBERTINI & UBERTINI INVESTMENTS PTY LTD (ACN 009 388 566)	Plaintiffs
v
SAECO INTERNATIONAL GROUP SPA SOCIETA A SOCIO UNICO & SAECO AUSTRALIA PTY LTD (ACN 059 711 009)	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2010
DATE OF JUDGMENT:	29 April 2010
CASE MAY BE CITED AS:	Re Saeco Australia Pty Ltd (ACN 059 711 009)
MEDIUM NEUTRAL CITATION:	[2010] VSC 161

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PRACTICE & PROCEDURE – Appeal against orders of an Associate Justice – Whether leave is required – r 16.5 Supreme Court (Corporations) Rules 2003, r 77.06 Supreme Court (General Civil Procedure) Rules 2005.

PRACTICE & PROCEDURE – Principles governing grant of leave to appeal from a discretionary order where the appeal proceeds as a hearing de novo, if leave is granted.

PRACTICE & PROCEDURE – Discovery – Non-compliance with orders – Summary dismissal of proceeding for non-compliance – Order setting aside the dismissal of the proceeding – Whether discretion wrongly exercised - Principles in Jorgensen v Slater and Gordon Pty Ltd [2008] VSCA 110 (Unreported, Maxwell ACJ, Forrest AJA, 18 June 2008) – Whether principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 should have been taken into account in the exercise of discretion – Decision not attended by sufficient doubt to warrant the grant of leave – Substantial injustice not shown – O 24.02 and O 24.06 Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M D Wyles SC with Ms E S Holt	Foster Nicholson Legal
For the First Defendant	Mr P H Solomon	Allens Arthur Robinson

HER HONOUR:

On 11 November 2008, Efthim AsJ dismissed this proceeding on the application of the first defendant (“SIG”)[1] pursuant r 24.02 of the Supreme Court (General Civil Procedure) Rules 2005 (“the SCR”). The application was based on the failure of the plaintiffs to comply with orders of the Court made on 4 April 2008, 19 September 2008 and 17 October 2008 for the discovery of documents. Efthim AsJ set aside order for dismissal on 2 December 2009, on the plaintiffs’ application made pursuant to r 24.06 of the SCR. Rule 24.06 gives the Court power to set aside or vary any order made under r 24.02 or under the inherent power of the Court as referred to in r 24.05, without the necessity for any appeal.[2] SIG has appealed the order made under r 24.06.
[1]The second defendant was joined as a party for the purpose only of the plaintiff obtaining discovery.
[2]Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212 (Unreported, Hargrave J, 20 June 2000).

A. Is leave to appeal required?

There was a preliminary issue as to whether SIG can appeal as of…

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 Saeco Australia Pty Ltd (ACN 059 711 009)

Details

AGLC: Re Saeco Australia Pty Ltd (ACN 059 711 009) [2010] VSC 161
Case: [2010] VSC 161
Decision Date: 29 April 2010

CaseChat Overview and Summary

In the matter of Re Saeco Australia Pty Ltd (ACN 059 711 009), the Supreme Court of Victoria was called upon to address several procedural issues. The applicant, Saeco Australia Pty Ltd, sought an appeal against orders made by an Associate Justice of the Court, primarily concerning the dismissal of proceedings due to non-compliance with discovery orders. The appeal centred around the need for leave to appeal and the principles governing the grant of such leave, particularly in cases where the appeal is heard de novo.

The court was tasked with determining whether leave was necessary for the appeal, considering relevant provisions such as rule 16.5 of the Supreme Court (Corporations) Rules 2003 and rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005. Further, it had to examine the principles governing the grant of leave to appeal from a discretionary order, particularly when the appeal proceeds as a de novo hearing. The court also needed to consider whether the discretion to set aside the dismissal of proceedings was exercised correctly, taking into account relevant authorities like Jorgensen v Slater and Gordon Pty Ltd and Aon Risk Services Australia Ltd v Australian National University.

After thorough consideration of the relevant rules and authorities, the Court found that the discretion exercised by the Associate Justice was not flawed to the extent that it warranted the grant of leave to appeal. The Court held that there was no sufficient doubt in the decision to warrant the appeal, and no substantial injustice was demonstrated. Consequently, the Court dismissed the application for leave to appeal, upholding the Associate Justice's decision to dismiss the proceedings for non-compliance with discovery orders. This decision was in line with the principles set out in Orders 24.02 and 24.06 of the Supreme Court (General Civil Procedure) Rules 2005.

Orders