Sims v Suda Ltd (No.2)
[2016] FCCA 2781
•27 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v SUDA LTD (No.2) | [2016] FCCA 2781 |
| Catchwords: PRACTICE AND PROCEDURE – Discovery – whether discovery in the interests of the administration of justice – relevance. |
| Legislation: Bankruptcy Act 1966 (Cth), s.52(2) Federal Circuit Court of Australia Act 1999, ss.3 and 45 Federal Circuit Court Rules 2001 (Cth), r.1.03 |
| Cases cited: Abrahams v Qantas Airways Ltd (No.2)[2007] FMCA 639; (2007) 210 FLR 314 Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 Sims v Suda Ltd [2015] FCA 280 Sims v Suda Ltd [2015] FCCA 2934 |
| Applicant: | DOUGLAS ARTHUR SIMS |
| Respondent: | SUDA LTD |
| File Number: | PEG 448 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 27 October 2016 |
| Date of Last Submission: | 27 October 2016 |
| Delivered at: | Perth |
| Delivered on: | 27 October 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr NC Ebbs |
| Solicitors for the Respondent: | Bennett+Co |
ORDERS
That the applicant’s application in a case filed 19 October 2016 be dismissed.
That the applicant pay the respondent’s costs in the sum of $750 by 4 November 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 448 of 2016
| DOUGLAS ARTHUR SIMS |
Applicant
And
| SUDA LTD |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The Court has before it an application in a case by the applicant, Mr Sims, which in essence seeks discovery of certain documents for the purposes of the substantive proceedings. In the substantive proceedings Mr Sims brings an application for review of a Registrar's sequestration order against Mr Sims (“Review Application”).
The application in a case seeks the discovery of the following documents:
a)a document of assignment from the administrator, HC Berlin Pharma AG (“BP”) assigning back to Suda Ltd the beneficial ownership of patent numbers US6180105, GB0720967.9 and GB611079.5 assigned to BP by Suda Ltd;
b)the original, alternately stamped, copy of the replacement manufacturing agreement between Eastland Medical Systems Limited, now Suda Ltd, and BP dated 22 April 2009 together with all annexures;
c)original certificate of assignments of malaria patents under company seal August 2008; and
d)disclosure of rights presented to:
i)the members of Novadel Pharma Inc;
ii)Bank of America;
iii)Bergen Opportunity Fund LLC; and
iv)purchase of patents contract between Protopharma, London Pharma and Suda Ltd.
The application is supported by an affidavit of Mr Sims (Mr Sims’ Affidavit”) which is in the following terms:
1) On 29 July 2008 Eastland Medical Systems Ltd, now Suda Ltd., assigned under company seal the patents rights of the malaria patents to HC Berlin Pharma AG (BP).
2) On 13 October 2008 BP wrote Suda a request to clarify the patents ownership to Suda as Suda had acquired all rights of its subsidiary Eastland Medical Systems South Africa, who had assigned the manufacturing to BP. (“DAS 1”)
(DAS1 is a document attached which would appear to be a copy of an agreement both in English and German.)
3) At trial CIV 2168/2011 on 24 October 2013 counsel for Suda Ltd confirmed to the court that Suda had been left with nothing, NOTHING, Sims had given it away.
4) At that very point in time Suda and its counsel were fully informed that Suda were acting illegally in their securing of funding and the funding of defences by Suda by proceeds of crime.
5) Whilst Suda made a delayed announcement on 3 June 2016. not only is the announcement false but it evidences continuing offences against s674 and s1311 of the Corporations Act and 3.1 of ASX rules because:
a) it contains facts that Suda had taken legal advice after receipt of the Statement of Claim without continuous disclosure;
b) The announcement was misleading, Deceptive and fraud as without BP assigning the Beneficial Ownership of the Patent Rights back to Suda Ltd, as was to be the case, then Suda could not be the licensor and was left with nothing.
The Review Application relates to a judgment debt which arises from Federal Court judgments in Sims v Suda Ltd [2015] FCA 280 and Sims v Suda Ltd(No 2) [2015] FCA 281. The Federal Court struck out Mr Sims' pleading in those proceedings and summarily dismissed his application, and also ordered that Mr Sims pay Suda Ltd's costs on an indemnity basis. Those costs were subsequently assessed by a Registrar of the Federal Court in the sum of $30,284 (“Costs Order”).
Those costs were the subject of the issuance of a bankruptcy notice. That bankruptcy notice was sought to be set aside by Mr Sims on application to a Registrar of this Court, and on the refusal of a Registrar of this Court to set aside the bankruptcy notice, there was an application to this Court to review the decision of the Registrar of this Court which application by Mr Sims was dismissed: Sims v Suda Ltd [2015] FCCA 2934. Subsequently, in Sims v Suda Ltd [2016] FCA 1086 the Federal Court dismissed an appeal against Sims v Suda Ltd [2015] FCCA 2934.
Much of the content of Mr Sims’ Affidavit, short as it is, is inadmissible as it constitutes argument, submission, assertion and arguably again is scandalous, for reasons set out in earlier judgments of this Court: see Sims v Jooste & Ors [2016] FCCA 1343, Sims v Jooste & Ors (No.3) [2016] FCCA 1751 and Sims v Jooste & Ors (No.4) [2016] FCCA 2641. The Court relies upon, but will not repeat, what was said in those earlier judgments of this Court. The essence of what now appears to be submitted by Mr Sims is that the litigation giving rise to the Costs Order was funded by Suda Ltd by fraud or the proceeds of crime. That contention is simply not proven in these proceedings. The production of the documents sought in the application in a case does nothing to prove how it is that Suda Ltd funded the litigation before the Federal Court which gave rise to the Costs Order.
Furthermore, on the hearing of the Review Application, for the purposes of s.52(2) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) the Court has to be satisfied that any order to set aside the sequestration order rests upon either Mr Sims being able to pay his debts or there being other sufficient cause for a sequestration order not to issue. The documents sought in this application are not on their face relevant to proof of any matter going to Mr Sims fulfilment of s.52(2) of the Bankruptcy Act on the Review Application.
It also needs to be borne in mind that Suda Ltd is not the only creditor and that the debt relates to proceedings in the Federal Court, in which the proceedings brought by Mr Sims were struck out by the Federal Court as disclosing no reasonable prospect of success. How those proceedings were funded is irrelevant to the fact that the Federal Court found that those proceedings had no reasonable prospect of success and awarded costs against Mr Sims.
The Court is therefore of the view that the documents sought are not relevant to these proceedings. The Court is also concerned that there seems to be some attempt, or might be some attempt, in these proceedings by this application in a case to seek documents to begin to retry litigation which was been determined elsewhere. The Court is also concerned that there may be delay, bearing in mind that the Review Application is listed for one day on 1 December 2016, and that the Review Application is not a general inquiry into the conduct of Suda Ltd’s lawyers or how Suda Ltd has funded particular litigation. It will deal with the issues, which Mr Sims needs to address, which arise for the purposes of s.52(2) of the Bankruptcy Act.
The Court has regard to:
a)the objects of the Federal Circuit Court as set out in s.3 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.1.03 of the Federal Circuit Court Rules 2001 (Cth); and
b)the provisions of s.45(1) and (2) of the FCCA Act dealing with discovery, which provide that before this Court makes an order for discovery there must be a declaration that discovery is in the interests of the administration of justice, and that the Court is also required to consider whether or not such an order would be likely to contribute to the far and expeditious conduct of the proceedings.
The Court, having had regard to s.45 of the FCCA Act, and to the tests which have been adopted with respect to s.45 of the FCCA Act, which are outlined in Abrahams v Qantas Airways Ltd (No.2) [2007] FMCA 639; (2007) 210 FLR 314 (“Abrahams”) and which were recently cited with approval in the Federal Court in Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 (“Hartnett Legal Services”), and noting particularly that relevance is an essential requirement for an order of discovery but may not of itself be sufficient to warrant such an order: Hartnett Legal Services at [27] and [33]-[34]per Rangiah J; Abrahams at [22] per Lucev FM, is not persuaded that it is in the interests of the administration of justice to make the orders sought by Mr Sims.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Lucev.
Date: 3 November 2016
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