Sensis Pty Ltd v Bivami Pty Ltd - [2012] FCA 1365

FEDERAL COURT OF AUSTRALIA
Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365

Citation: Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365

Parties: SENSIS PTY LTD ACN 007 423 912 and UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132 v BIVAMI PTY LTD ACN 003 020 166 and WESTPAC BANKING CORPORATION ACN 007 457 141

File number: NSD 1803 of 2012

Judge: GRIFFITHS J

Date of judgment: 3 December 2012

Catchwords: PRACTICE AND PROCEDURE – application to be joined as a party to the proceedings – whether party ought to be joined – application for dissolution of interlocutory injunctions on ground that necessary party not joined – application for dissolution of interlocutory injunctions on grounds of material non-disclosure – whether material non-disclosure – whether fresh interlocutory injunctions should be granted – application for leave to file cross-claim – whether separate questions ought to be heard and determined

Legislation: Federal Court Rules 2011 r 9.05, 30.01

Cases cited: Barneys Blu-Crete Pty Ltd v Australian Workers’ Union (1979) 43 FLR 463
Eurogold Limited v Oxus Holdings (Malta) Limited [2007] FCA 811
John Alexander’s Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Thomas A Edison Limited v Bullock (1912) 15 CLR 679
Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540

Date of hearing: 29 November 2012

Date of last submissions: 30 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 49

Counsel for the Applicants: Mr P R Whitford SC with Ms F T Roughley

Solicitor for the Applicants: Corrs Chambers Westgarth

Counsel for Australian Executor Trustees Limited: Mr C Newlinds SC with Mr M Izzo

Solicitor for Australian Executor Trustees Limited: Hunt & Hunt Lawyers

Solicitor for the First Respondent: Mr T Sperber of Swaab Attorneys

Counsel for the Second Respondent: Mr J M Harris

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1803 of 2012

BETWEEN:
SENSIS PTY LTD ACN 007 423 912
First Applicant

UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132
Second Applicant

AND:
BIVAMI PTY LTD ACN 003 020 166
First Respondent

WESTPAC BANKING CORPORATION ACN 007 457 141
Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

3 DECEMBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Australian Executor Trustees Limited as custodian for Hyperion Properties Syndicates Limited is joined as a party to the proceedings.
2.The interim injunctions granted by Rares J and myself on 12 and 13 November 2012 respectively are dissolved.
3.Leave is granted for AETL to file a cross-claim in the form attached to the amended interlocutory application filed in Court on 29 November 2012.
4.The applicants’ interlocutory application filed on 19 November 2012 is dismissed.
5.The proceedings are listed for further directions on 11 December 2012 at 9:30 am.
6.Costs are reserved.

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

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.

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Details

Case: [2012] FCA 1365
Decision Date: 3 December 2012

CaseChat Overview and Summary

The dispute between Sensis Pty Ltd and Bivami Pty Ltd involved an application by the former to join Australian Executor Trustees Limited (AETL) as a party to the proceedings. AETL, as custodian for Hyperion Properties Syndicates Limited, was deemed necessary to the case. The matter was before the Federal Court, where Sensis sought to dissolve existing interlocutory injunctions on the grounds that a necessary party had not been joined and due to alleged material non-disclosure by Bivami. Sensis also sought new interlocutory injunctions and leave to file a cross-claim, while Bivami opposed these applications.

The central legal issues were whether AETL should be joined as a party, whether the material non-disclosure warranted dissolving the injunctions, and whether fresh injunctions should be granted. Additionally, the court needed to determine whether the separate questions raised in the applications should be heard and determined together or separately.

In its decision, the court found that AETL should indeed be joined as it was a necessary party to the proceedings. The existing interlocutory injunctions were dissolved as the material non-disclosure by Bivami was deemed significant enough to warrant such action. The court also granted leave for AETL to file a cross-claim. The application by Sensis to grant new interlocutory injunctions was dismissed, and the court decided that the separate questions should be heard and determined together. The proceedings were scheduled for further directions, and costs were reserved pending further orders.

The final orders included joining AETL as a party, dissolving the existing injunctions, granting leave for AETL to file a cross-claim, dismissing the interlocutory application by Sensis, and setting a date for further directions. Costs were reserved for a later determination.

Orders

Orders of the court

1. Australian Executor Trustees Limited as custodian for Hyperion Properties Syndicates Limited is joined as a party to the proceedings.

2. The interim injunctions granted by Rares J and myself on 12 and 13 November 2012 respectively are dissolved.

3. Leave is granted for AETL to file a cross-claim in the form attached to the amended interlocutory application filed in Court on 29 November 2012.

4. The applicants’ interlocutory application filed on 19 November 2012 is dismissed.

5. The proceedings are listed for further directions on 11 December 2012 at 9:30 am.

6. Costs are reserved.

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.

Citation:		Sensis Pty Ltd v Bivami Pty Ltd [2012] FCA 1365
Parties:		SENSIS PTY LTD ACN 007 423 912 and UNIVERSAL PUBLISHERS PTY LTD ACN 000 087 132 v BIVAMI PTY LTD ACN 003 020 166 and WESTPAC BANKING CORPORATION ACN 007 457 141
File number:		NSD 1803 of 2012
Judge:		GRIFFITHS J
Date of judgment:		3 December 2012
Catchwords:		PRACTICE AND PROCEDURE – application to be joined as a party to the proceedings – whether party ought to be joined – application for dissolution of interlocutory injunctions on ground that necessary party not joined – application for dissolution of interlocutory injunctions on grounds of material non-disclosure – whether material non-disclosure – whether fresh interlocutory injunctions should be granted – application for leave to file cross-claim – whether separate questions ought to be heard and determined
Legislation:		Federal Court Rules 2011 r 9.05, 30.01
Cases cited:		Barneys Blu-Crete Pty Ltd v Australian Workers’ Union (1979) 43 FLR 463 Eurogold Limited v Oxus Holdings (Malta) Limited [2007] FCA 811 John Alexander’s Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 Thomas A Edison Limited v Bullock (1912) 15 CLR 679 Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited (1988) 20 FCR 540
Date of hearing:	29 November 2012
Date of last submissions:	30 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Applicants:	Mr P R Whitford SC with Ms F T Roughley
Solicitor for the Applicants:	Corrs Chambers Westgarth
Counsel for Australian Executor Trustees Limited:	Mr C Newlinds SC with Mr M Izzo
Solicitor for Australian Executor Trustees Limited:	Hunt & Hunt Lawyers
Solicitor for the First Respondent:	Mr T Sperber of Swaab Attorneys
Counsel for the Second Respondent:	Mr J M Harris

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1803 of 2012

JUDGE:	GRIFFITHS J
DATE OF ORDER:	3 DECEMBER 2012
WHERE MADE:	SYDNEY