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Sims v Jooste and Ors (No.4)

Sims v Jooste and Ors (No.4)

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Case Copied 18 October 2016 46 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v JOOSTE & ORS (No.4)

[2016] FCCA 2641

Catchwords:
PRACTICE AND PROCEDURE – Application in a Case to strike out portions of an affidavit filed by the applicant – whether material scandalous or inadmissible.

PRACTICE AND PROCEDURE – Application for substituted service of originating application – application at hearing to extend time for substituted service of originating application – whether to extend time – whether to make substituted service order.

PRACTICE AND PROCEDURE – Extension of time – whether to extend time to serve originating application.

PRACTICE AND PROCEDURE – Application in a Case to re-open and to read affidavits previously not read – whether to read affidavits – whether to allow re-opening.

COSTS – Application for indemnity costs – whether indemnity costs payable.

WORDS AND PHRASES – “scandalous”.

Legislation:

Australian Consumer Law, ss.18, 20, 52
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth) ss.674, 1311
Disability Discrimination Act 1992 (Cth), ss.4, 5, 6
Evidence Act 1995 (Cth), ss.56(2), 144
Federal Circuit Court of Australia Act 1999 (Cth), ss.17, 17A
Federal Circuit Court Rules 2001 (Cth), rr.1.03, 3.05(1), 6.06, 6.14, 6.17, 13.10, 15.29
Rules of the Supreme Court 1971 (WA), O.55
Supreme Court Act 1935 (WA), s.16
Trade Practices Act 1974 (Cth), ss.18, 51AA, 52

Cases cited:

AHI15 v Minister for Immigration & Border Protection [2016] FCA 64
Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488
Belmont Finance Corp Ltd v Williams Furniture [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118
Blackman v Leppard (No.3) [2016] FCCA 272
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; (1990) 64 ALRJ 293; (1990) 92 ALR 193
Delahey & Garra-Marsh [2014] FCCA 499
Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd & Anor [2016] FCCA 356; (2016) 304 FLR 320
Hunter Valley Developments v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185
Manolakis v Carter [2008] FCAFC 183
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Murphy v State of Victoria & Anor [2014] VSCA 238; (2014) 289 FLR 337; (2014) 45 VR 119; (2014) 313 ALR 546
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203
Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
R v Flower (1799)…

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: [2016] FCCA 2641
Decision Date: 18 October 2016

CaseChat Overview and Summary

In *Sims v Jooste and Ors (No.4)*, heard before Judge Antoni Lucev, the applicant sought to strike out portions of an affidavit filed by the respondent, alleging the material was scandalous or inadmissible. The applicant also applied for an order for substituted service of an originating application and, at the hearing, sought to extend the time for such substituted service. Further, the applicant sought to re-open and read affidavits previously not read, and to allow the re-opening of the proceedings for that purpose. Finally, the applicant sought indemnity costs.

The court was required to determine whether the material in the respondent's affidavit was scandalous or inadmissible, thereby warranting its striking out. It also had to consider whether to grant an extension of time for the substituted service of the originating application and whether to make the order for substituted service itself. Additionally, the court needed to decide whether to permit the re-opening of the proceedings to read previously unread affidavits and whether indemnity costs were payable.

Judge Lucev considered the meaning of "scandalous" in the context of affidavits, noting that it generally refers to material that is irrelevant, vexatious, and reflects on the character of a party without serving any legitimate purpose. The court applied principles relating to the admissibility of evidence and the court's discretion in managing proceedings, including the granting of extensions of time and orders for substituted service, which require a demonstration of good reason and that the proposed service is likely to bring the proceedings to the notice of the party to be served. The court also considered the circumstances under which it may re-open proceedings and the criteria for awarding indemnity costs, which are typically reserved for cases where a party has acted vexatiously, abusively, or unreasonably.

Orders