Wavetrain Systems As v Next Generation Rail Technologies SL - [2019] FCA 350

FEDERAL COURT OF AUSTRALIA
Wavetrain Systems AS v Next Generation Rail Technologies SL [2019] FCA 350

File number NSD 112 of 2019

Judge: ROBERTSON J

Date of judgment: 15 March 2019

Catchwords: PRACTICE AND PROCEDURE –where interlocutory orders made by the Court – where affidavit evidence filed on behalf of the applicant was later identified by applicant’s solicitors as untruthful –whether the untruthful affidavit evidence should be removed from the Court file – whether non-publication orders should be continued – whether the papers should be referred to the Commonwealth Attorney-General to investigate and determine whether criminal proceedings should be brought in respect of the giving of false testimony

Legislation: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 20

Date of hearing: 13 March 2019

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 24

Counsel for the Applicant: Ms R White

Solicitor for the Applicant: Mills Oakley

Counsel for the Respondents: The Respondents did not appear

ORDERS

NSD 112 of 2019

BETWEEN:
WAVETRAIN SYSTEMS AS

Applicant

AND:
NEXT GENERATION RAIL TECHNOLOGIES SL

First Respondent

RICHARD AAROE

Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

15 MARCH 2019

THE COURT ORDERS THAT:
1.Orders 5 and 6 of the orders made by Wigney J on 30 January 2019 concerning the non-publication or confidentiality of certain documents be set aside.
2.Until further order, publication of the following material to any person other than the legal representatives of the parties and those officers involved in carrying out order 4 below, and any subsequent investigation or prosecution, be prohibited pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground set out in s 37AG(1)(a):
(a)the dollar figures, twice occurring, in [63] of the affidavit of Mark Hamilton Foster sworn 29 January 2019 (the Foster affidavit);
(b)the second and third sentences in [66] of the Foster affidavit;
(c)the figures, twice occurring, in the last line of [80] of exhibit MHF-2 to the Foster affidavit;
(d)[83] of exhibit MHF-2 to the Foster affidavit;
(e)the seventh to tenth words in line two of [84] of exhibit MHF-2 to the Foster affidavit;
(f)the dollar figure in the last line of [85] of exhibit MHF-2 to the Foster affidavit;
(g)the dollar figure in the last line of [86] of exhibit MHF-2 to the Foster affidavit.

3.Otherwise open access be granted to the affidavits filed in the proceedings, including those affidavits not read in open court.
4.Leave be granted to the applicant to file replacement copies of Mr Foster’s affidavits dated 29 January 2019 and 12 February 2019 marked to identify the parts of those affidavits, set out at [17]-[18] of the reasons for judgment, which the solicitors for the applicant identified as not truthful.
5.The papers be referred to the Commonwealth Attorney-General for the purpose of an investigation being conducted by the appropriate authorities in order to decide whether criminal proceedings should be brought in…

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 Wavetrain Systems As v Next Generation Rail Technologies SL

Details

AGLC: Wavetrain Systems As v Next Generation Rail Technologies SL [2019] FCA 350
Case: [2019] FCA 350
Decision Date: 15 March 2019

CaseChat Overview and Summary

Wavetrain Systems Asia, the applicant, and Next Generation Rail Technologies SL, the respondent, were involved in a legal dispute before the Federal Court of Australia. The primary issue was the veracity of affidavit evidence provided by Mark Hamilton Foster on behalf of Wavetrain Systems Asia. It was later found that parts of the affidavit were not truthful. The court had to determine whether the untruthful affidavit evidence should be removed from the court file, if the non-publication orders should continue, and whether the papers should be referred to the Commonwealth Attorney-General for investigation into potential criminal proceedings.

The court considered whether the untruthful affidavit evidence should be removed from the court file and, if so, what impact this would have on the ongoing proceedings. Additionally, the court examined whether the non-publication orders, which were intended to protect certain information, should be continued given the new circumstances. The court also deliberated on whether the papers should be referred to the Commonwealth Attorney-General for an investigation into the potential criminal implications of the untruthful evidence.

In setting aside the non-publication orders and prohibiting the publication of certain parts of the affidavit evidence, the court emphasised the importance of maintaining the integrity of the legal process. The court granted leave to file replacement copies of the affidavits with markings to identify the untruthful parts. It also referred the papers to the Commonwealth Attorney-General to investigate the potential for criminal proceedings against Mr Foster for providing false testimony. The court's decision aimed to uphold the principles of honesty and transparency in legal proceedings while also addressing the implications of the untruthful evidence.

The final orders included setting aside certain non-publication orders, prohibiting the publication of specific parts of the affidavit evidence, granting open access to the affidavits, allowing the filing of marked replacement affidavits, and referring the papers to the Commonwealth Attorney-General for investigation. These orders reflected the court's commitment to ensuring the integrity of the legal process and addressing the consequences of the untruthful evidence.

Orders

Orders of the court

1. Orders 5 and 6 of the orders made by Wigney J on 30 January 2019 concerning the non-publication or confidentiality of certain documents be set aside.

2. Until further order, publication of the following material to any person other than the legal representatives of the parties and those officers involved in carrying out order 4 below, and any subsequent investigation or prosecution, be prohibited pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground set out in s 37AG(1)(a):

(a) the dollar figures, twice occurring, in [63] of the affidavit of Mark Hamilton Foster sworn 29 January 2019 (the Foster affidavit);

(b) the second and third sentences in [66] of the Foster affidavit;

(d) [83] of exhibit MHF-2 to the Foster affidavit;

(e) the seventh to tenth words in line two of [84] of exhibit MHF-2 to the Foster affidavit;

(f) the dollar figure in the last line of [85] of exhibit MHF-2 to the Foster affidavit;

(g) the dollar figure in the last line of [86] of exhibit MHF-2 to the Foster affidavit.

3. Otherwise open access be granted to the affidavits filed in the proceedings, including those affidavits not read in open court.

4. Leave be granted to the applicant to file replacement copies of Mr Foster’s affidavits dated 29 January 2019 and 12 February 2019 marked to identify the parts of those affidavits, set out at [17]-[18] of the reasons for judgment, which the solicitors for the applicant identified as not truthful.

5. The papers be referred to the Commonwealth Attorney-General for the purpose of an investigation being conducted by the appropriate authorities in order to decide whether criminal proceedings should be brought in relation to the untrue evidence of Mr Foster.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number	NSD 112 of 2019
Judge:	ROBERTSON J
Date of judgment:	15 March 2019
Catchwords:	PRACTICE AND PROCEDURE –where interlocutory orders made by the Court – where affidavit evidence filed on behalf of the applicant was later identified by applicant’s solicitors as untruthful –whether the untruthful affidavit evidence should be removed from the Court file – whether non-publication orders should be continued – whether the papers should be referred to the Commonwealth Attorney-General to investigate and determine whether criminal proceedings should be brought in respect of the giving of false testimony
Legislation:	Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 20
Date of hearing:	13 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Applicant:	Ms R White
Solicitor for the Applicant:	Mills Oakley
Counsel for the Respondents:	The Respondents did not appear

JUDGE:	ROBERTSON J
DATE OF ORDER:	15 MARCH 2019