Legal Research
Cases
Sims v Jooste & Ors (No.3)

Sims v Jooste & Ors (No.3)

Case [2016] FCCA 1751 15 July 2016

Costs

Procedural Fairness

Civil Procedure

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v JOOSTE & ORS (No.3)

[2016] FCCA 1751

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

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

WORDS AND PHRASES – “scandalous”.

Legislation:

Criminal Code Act 1995 (Cth)

Corporations Act 2001 (Cth), ss.674, 1311(1), 1317E
Evidence Act 1995 (Cth), s.56(2)

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules (Cth), r.15.29

Cases cited:

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
McPherson v Kerr, Ex Parte Lewis (1893) 19 VLR 23
Sims v Jooste & Ors [2016] FCCA 1343
Sims v Jooste QC [2013] WASCA 245
Sims v Jooste [2013] WASC 425
Sims v Suda Ltd (No.2) [2015] FCA 281
Suda Ltd v Sims [2013] FCCA 1833
Zaghloul v Woodside Energy Ltd (No.2) [2013] FCA 947

Applicant:

DOUGLAS ARTHUR SIMS

First Respondent:

PETER INNES JOOSTE (DEC’D)

Second Respondent:

MICHAEL ROBERT STEWART

Third Respondent:

MARTIN LAWRENCE BENNETT

File Number:

PEG 30 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

9 June 2016

Date of Last Submission:

9 June 2016

Delivered at:

Perth

Delivered on:

15 July 2016

REPRESENTATION

For the Applicant:

In person

Counsel for the Third Respondent:

Mr S Popperwell

Solicitors for the Third Respondent:

Denman Popperwell Lawyers

ORDERS

Pursuant to r.15.29 of the Federal Circuit Court Rules 2001 (Cth) paragraph 7 of the affidavit sworn by Douglas Arthur Sims on 19 May 2016 be struck out as scandalous and inadmissible.
The applicant pay the costs of the third respondent on an indemnity basis, with the actual quantum, if not agreed, to be determined by a Registrar of this Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 30 of 2014

DOUGLAS ARTHUR SIMS

Applicant

And

PETER INNES JOOSTE (DEC’D)

First Respondent

MICHAEL ROBERT STEWART

Second Respondent

MARTIN LAWRENCE BENNETT

Third Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in a Case filed on 31 May 2016 the third respondent, Martin Lawrence Bennett (“Mr Bennett”) seeks orders that:
1.Pursuant to Rule 15.29 paragraph 7 of the affidavit made by Douglas Arthur Sims (the Applicant) on 19 May 2016 be struck out as scandalous and inadmissible.
2.The Applicant pay the Third Respondent’s costs of this application assessed on an indemnity basis.

Objectionable material may be struck out of affidavits

Rule 15.29 of the Federal Circuit Court Rules (Cth) (“FCC Rules”) provides as follows:
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid…

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 Sims v Jooste & Ors (No.3)

Details

AGLC: Sims v Jooste & Ors (No.3) [2016] FCCA 1751
Case: [2016] FCCA 1751
Decision Date: 15 July 2016

CaseChat Overview and Summary

In *Sims v Jooste & Ors (No.3)*, the applicant sought to strike out portions of an affidavit filed by the respondents. The dispute concerned whether certain material within the affidavit was scandalous or otherwise inadmissible in the proceedings.

The primary legal issue before the Court was to determine whether the impugned portions of the affidavit met the threshold for being considered "scandalous" under the rules of evidence and procedure, thereby warranting their removal from the court record. A secondary issue related to an application for indemnity costs.

His Honour Judge Antoni Lucev considered the definition of "scandalous" in the context of affidavit evidence, which generally refers to material that is irrelevant, vexatious, and intended to degrade or defame a party. The Court applied the principles that such material should be struck out to ensure the efficient and fair conduct of litigation and to prevent unnecessary prejudice. The application for indemnity costs was also considered in light of the conduct of the parties.

The Court ordered that certain portions of the respondents' affidavit be struck out as scandalous and ordered that the respondents pay the applicant's costs of the application, with those costs to be assessed on an indemnity basis.

Orders