Tamawood Ltd v Habitare Developments Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Tamawood Limited (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364

CORRIGENDUM

TAMAWOOD LIMITED ACN 010 954 499 v HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497, BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100, PETER FREDERICK O'MARA, DAVID GAVIN JOHNSON and WAYNE NORMAN BLOOMER

NSD 2504 of 2007

COLLIER J
20 APRIL 2009 (CORRIGENDUM 21 APRIL 2009)
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD 2504 of 2007
BETWEEN:

TAMAWOOD LIMITED ACN 010 954 499
Applicant
AND:

HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497
First Respondent

BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100
Second Respondent

PETER FREDERICK O'MARA
Third Respondent

DAVID GAVIN JOHNSON
Fourth Respondent

WAYNE NORMAN BLOOMER
Fifth Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

20 APRIL 2009 (CORRIGENDUM 21 APRIL 2009)

WHERE MADE:

BRISBANE

CORRIGENDUM

  1. In paragraph [45] of the Reasons for Judgment “19 June 2008” should read “19 June 2006”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        21 April 2009

FEDERAL COURT OF AUSTRALIA

Tamawood Limited (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364

PRACTICE AND PROCEDURE – Order 27A Federal Court Rules – third party subpoena – notice of motion seeking subpoenas related to interlocutory application to join other parties as respondents to substantive proceedings – factors relevant to discretion whether to grant leave – whether fishing expedition

Held: leave granted to issue subpoenas to third parties – costs reserved

Copyright Act 1968 (Cth) s 115
Federal Court of Australia Act 1976 (Cth) s 33N(1)
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 36, O 27A, O 15 r 1, O 15A

Alister v R (1984) 154 CLR 404 cited
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 cited
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 cited
Hennessy v Wright (No 2) (1890) 24 QBD 445 followed
Hughes v WA Cricket Association (1986) 66 ALR 541 cited
McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 followed
P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 cited
R v Saleam [1999] NSWCCA 86 cited
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 followed
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 cited

TAMAWOOD LIMITED ACN 010 954 499 v HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497, BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100, PETER FREDERICK O'MARA, DAVID GAVIN JOHNSON and WAYNE NORMAN BLOOMER

NSD 2504 of 2007

COLLIER J
20 APRIL 2009
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

NSD 2504 of 2007
BETWEEN:

TAMAWOOD LIMITED ACN 010 954 499
Applicant
AND:

HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497
First Respondent

BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100
Second Respondent

PETER FREDERICK O'MARA
Third…

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Details
Case
[2009] FCA 364
Decision Date

CaseChat Overview and Summary

Tamawood Ltd sought leave to issue subpoenas to certain non-parties in order to obtain documents that would evidence the involvement of Habitare Developments Pty Ltd and Habitare Pty Ltd in certain property developments. The respondents opposed the application. The primary issue for the Court was whether the subpoenas, as sought, were appropriate in the circumstances. The Court considered that it was appropriate to grant the application, albeit with some modifications. The Court accepted that the subpoenas would not be oppressive and that the documents sought were relevant to the proceedings. The Court also considered that the application was not a fishing exercise, but rather a reasonable attempt to clarify the identity of the developer of the relevant projects. The Court noted that the applicant had already obtained some evidence suggesting that both Habitare Developments Pty Ltd and Habitare Pty Ltd were developers of the projects. However, the Court found that the applicant needed further evidence to support its application to join Habitare Pty Ltd and amend the statement of claim.

The Court made several orders in relation to the subpoenas. The Court ordered that the subpoenas be issued to the Brisbane City Council, ANZ Banking Corporation and Certis Pty Ltd. The Court also specified the types of documents that the subpoenas should require the non-parties to produce. The Court ordered that the subpoenas be returnable within 14 working days of the judgment. The Court reserved costs.

Orders

Orders of the court

1. Leave be granted under Order 27A of the Federal Court Rules to the applicant to issue subpoenas addressed to the Brisbane City Council, ANZ Banking Corporation and Certis Pty Ltd requiring production by them of the following documents:

(a) those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Bracken Ridge in the relevant period;

(b) those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period;

(c) those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Pty Ltd to the Brisbane City Council, or correspondence in relation thereto, in respect of the property development undertaken at Hamish Street, Calamvale;

(d) those documents created by Habitare Pty Ltd or submitted by it recording any proposal to undertake in the property development undertaken at Hamish Street, Calamvale in the relevant period;

(e) those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Bracken Ridge in the relevant period;

(f) those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period;

(g) those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Developments Pty Ltd to the Brisbane City Council or correspondence in relation thereto, in respect of the property development undertaken at Hamish Street, Calamvale;

(h) those documents created by Habitare Developments Pty Ltd or submitted by it recording any proposal to undertake the property development undertaken at Hamish Street, Calamvale in the relevant period.

2. So far as concerns subpoenas issued to the Brisbane City Council and Certis Pty Ltd:

(a) the relevant period referred to in paragraph 1(b)-(d) and (f)-(h) hereof is the period between 21 November 2005 and the date that the occupation certificates were issued in respect of the development at Lots 12 and 13 Hamish Street, Calamvale;

(b) the relevant period referred to in paragraph 1(a) and (e) hereof is the period between the earlier of 19 June 2006 or the date that the development application in respect of Lots 211 and 219 Norris Road was lodged, and 27 November 2007.

3. So far as concerns subpoenas issued to ANZ Banking Corporation the relevant period is the period between 20 October 2005 and the date of this judgment.

4. The subpoenas referred to in paragraph 1 be returnable at 4.00 pm fourteen (14) working days after the delivery of this judgment.

5. Costs be reserved.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In summary, the respondent submitted that:·Where leave is sought to issue a subpoena upon a non-party, it must be shown that the terms of the subpoena are not so broad that they are oppressive. The subpoena must not require the delivery of material that is not relevant to the proceedings.·In this case, in circumstances where there are two developments concerning more than 60 townhouses, the applicant seeks details going to the “involvement” of the first respondent, Habitare Pty Ltd and perhaps other companies. Presumably the subpoenas would mean that the recipients of the subpoenas are required to disclose every aspect of those developments in circumstances where they are likely to be voluminous, they will be largely irrelevant to the instant dispute, and they may be commercially sensitive.·Subpoenas should not be used against an existing party in substitution of discovery. The applicant could seek discovery against the respondents pursuant to O 15 r 1 Federal Court Rules.·The notice of motion is in the nature of a “fishing” exercise.·The applicant’s proposed further amended statement of claim has not been the subject of any leave and is not, in any sense, an operative pleading.·The applicant does not indicate when the subpoenas would be returnable, nor why it believed such period will not be oppressive to the non-parties. Further, in circumstances where the material may be voluminous, the applicant does not explain how the delivery of the documents to the Court can be managed conveniently.Evidence Two affidavits sworn by Mr Castrission are on the Court file, and the applicant relied on both for the purposes of this notice of motion. The first affidavit of Mr Castrission was sworn 17 November 2008. The second affidavit of Mr Castrission, to which I have already referred, was sworn 25 November 2008. So far as relevant in these proceedings, annexed to Mr Castrission’s first affidavit are the following documents:1.Annexure D, which is titled “Development Application Decision Notice” under the letterhead of Express Plans Approval Services Pty Ltd. Mr Castrission deposes that Annexure D is a document obtained by an employee of the applicant pursuant to searches made with the Brisbane City Council. The Development Application Decision Notice is in respect of “Lot 4 & 5 on RP 78240 known also as (address) 211-219 Norris Road, Bracken Ridge”. The “Owner” noted on the notice is “Habitare Pty Ltd”.2.Annexure E, which is an ASIC search of Habitare Pty Ltd. The search reveals Peter Frederick O’Mara (the third respondent) as the company’s director and David Gavin Johnson (the fourth respondent) as the alternate director. (The applicant claims that Mr O’Mara and Mr Johnson are also officers of the first respondent.)3.Annexures G to M include correspondence between the respective solicitors of the applicant and the respondents:3.1Annexure G is a letter from Hopgood Ganim to Mr Castrission dated 17 April 2008 stating that in preparing the Defence:…it has become apparent that your client has, respectfully, instituted proceedings against the wrong parties.Simply stated, Habitare Developments Pty Ltd was not the developer of the properties referred to in the pleadings. It did not make or authorise the making of any submissions to the Council for approval of the said developments, or use them to build houses at the said developments. It was not the builder, nor was it the owner of the houses constructed as part of the developments pleaded.3.2Annexure H is Mr Castrission’s letter of 26 September 2008 to Hopgood Ganim in response to the respondent’s letter of 17 April 2008 requesting that the respondents advise:i.the identity of the person or entity that was the developer of the properties referred to in the pleadings;ii.the identity of the person or entity that made or authorised the making of any submissions to the Council for approval of the said developments;iii.the identity of the person or entity that used the plans of the houses that were built at the properties referred to in the pleading.Mr Castrission then notes that if the respondents are unwilling to advise on the matters requested then his client may make an application for preliminary discovery or interrogatories.3.3Annexure I is a letter from Hopgood Gamin dated 3 October 2008 to Mr Castrission in response to Mr Castrission’s letter of 26 September 2008. The letter notes that:It is…your client that must prove those details in order to support the allegations pleaded, not our clients. Our clients are under no obligation to provide those details sought by your client (if known)… There are a number of other simple and inexpensive options available to your client to obtain the details sought, should it choose to avail itself of them.

Decision

Reasons for decision

COLLIER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

The order sought pursuant to the notice of motion currently before the Court relates to a separate notice of motion filed by the applicant on 17 November 2008 seeking to join three additional respondents (Habitare Pty Limited, Eight March Pty Limited and First Priority Developments Pty Ltd) to the substantive proceedings, and seeking an extension of time for filing and service of an amended application and further amended statement of claim by the applicant. Hearing of the notice of motion filed 17 November 2008 has been adjourned pending determination of the notice of motion currently before the Court.Rationale for the order sought In summary, the rationale for the order sought is that it is unclear whether either (or both) the first respondent or Habitare Pty Ltd are proper respondents to the substantive proceedings. Some explanation can be found in the affidavit of Mr John Castrission, solicitor for the applicant, sworn 25 November 2008. In his affidavit Mr Castrission deposes that:·A document (“Engagement Form”) annexed to the affidavit and relating to the development the subject of these proceedings was obtained by a representative of the applicant from the Brisbane City Council pursuant to a Freedom of Information request, and records the relevant applicant/contact as Habitare Pty Ltd.·A number of plans relating to the development the subject of these proceedings and annexed to the affidavit show, in some cases, the respondent as the client and in other cases “Habitare” as the client. Further, Mr Castrission deposes that:The applicant seeks to obtain documents further proving the involvement of the First Respondent and the proposed Respondent, Habitare Pty Ltd in the development the subject of these Proceedings. For that purpose it seeks leave to issue subpoenas to the relevant Council, the relevant Certifier or Certifiers and the Bank that financed the project. The documents that will be sought will be documents evidencing the involvement of Habitare Pty Limited (a proposed Respondent) and Habitare Developments Pty Limited (the First Respondent) on the development the subject of these Proceedings. There is already evidence of this issue but the Applicant seeks further evidence because Hopgood Ganim Layers take the position that the Applicant should select either Habitare Developments Pty Limited or Habitare Pty Ltd as a Respondent and not both of them. (John Castrission affidavit sworn 25 November 2008 at [5]) More detail as to the nature of the subpoenas sought emerged from the submissions of the applicant during the hearing. I shall return to that detail later in this judgment.Submissions of the parties In summary the applicant submitted as follows:·There is dispute between the applicant on the one hand, and a number of the respondents and Habitare Pty Ltd on the other, as to the proper respondents to the substantive proceedings. A key dispute is the identity of the developer of the relevant projects.·Although the respondents contend that the applicant is “fishing” in seeking to join Habitare Pty Ltd, evidence is already available to the applicant disclosing that both the first respondent and Habitare Pty Ltd were developers of the relevant projects. In fact, the applicant simply wants further evidence to support its application to join Habitare Pty Ltd and amend the statement of claim.·The subpoenas will be expressed with reasonable particularity.·The Court should not place too great a burden on a party in granting leave to issue subpoenas. The discretion to grant leave conferred by O 27A cannot be more burdensome than the principles that inform the setting aside of a subpoena.