Whitco Pty Ltd v Weavis, Nicolas - [1994] FCA 1099

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 90 of 1994
QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION )

BETWEEN: WHITCO PTY. LTD.

(A.C.N. 009 667 207)

Applicant

AND: NICOLAS WEAVIS

First Respondent

AND:MARKETMAKERS (AUST.) PTY. LTD.

(A.C.N. 052 290 721)

Second Respondent

AND:HARRY DESMOND PHIPPS

Third Respondent

Coram: Drummond J
Date: 28 September, 1994
Place: Brisbane

REASONS FOR JUDGMENT

This is an application by the first respondent in the action for leave to cross-claim against four additional parties and the applicant in respect of what is said to be unlawful conduct by those persons in executing the Anton Piller order which I made in these proceedings on 17 July last. The persons proposed to be joined include the firm of solicitors who are on the record as solicitors for the applicant in these proceedings and have been the solicitors for the applicant since the inception of the proceedings, and two solicitors employed by that firm.

The claim sought to be raised by the cross-claim is in trespass. The application for joinder is opposed by the applicant and also by the second and third respondents. If the application is granted, it will, in my view, necessarily mean that the solicitors who have acted for the applicant from the inception of the proceedings will have to withdraw and new solicitors retained, the new solicitors having to familiarise themselves with the quite complex proceedings that are on foot between the applicant and the existing respondents.

It is inevitable that further delay will be occasioned. The concern of the second and third respondents is very much at the further delay likely to be caused by the retention of new solicitors and also by the addition of further parties and the introduction of further issues into the litigation. The second and third respondents have put material before me to demonstrate that they have real concerns about delays causing what appears to be quite serious detriment to their businesses. The facts upon which the proposed cross-claim is based arise out of the main litigation, as I have indicated, but they do form a discrete episode.

Senior counsel for the first respondent, however, submits that it will be necessary to examine in detail, in determining the trespass claim, the same area of fact which will have to be examined in the current proceedings. He says that the Court should hold that there is a discretion to reject unlawfully obtained evidence in civil proceedings; that in view of the concern the Court has to ensure, so far as it can, that Anton Piller orders are enforced strictly in conformity with the limitations incorporated in the order commonly made by the Courts when it is considered appropriate to grant such extraordinary relief as Anton Piller relief, this is the sort of case in which unlawfully obtained evidence might very well be excluded as a matter of discretion, should the Court hold that such a discretion is available to it.

I have been referred,…

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: [1994] FCA 1099
Decision Date: 28 Sep 1994

CaseChat Overview and Summary

Whitco Pty Ltd has filed an application in the Federal Court of Australia against Nicolas Weavis, Marketmakers (Aust.) Pty Ltd, and Harry Desmond Phipps. The application concerns an alleged unlawful execution of an Anton Piller order made in the proceedings. The first respondent seeks leave to cross-claim against Whitco Pty Ltd and four additional parties, including the firm of solicitors representing Whitco Pty Ltd and two of its solicitors, on the grounds of trespass. Whitco Pty Ltd and the second and third respondents oppose the application for joinder, citing potential delays and prejudice to their businesses.

The court had to determine whether there exists a discretion in civil proceedings to exclude unlawfully obtained evidence and whether the potential for delay and prejudice justifies the denial of the application for joinder. Senior counsel for the first respondent argued that the court should acknowledge a discretion to exclude unlawfully obtained evidence in civil cases, citing the decision in Pearce v Button and the discussion in Mazinski v Bakka. However, the court found that it would be inappropriate to rely on the argument without being satisfied of the existence of such a discretion and without evaluating the factual material that would be essential for such an evaluation.

The court held that there is no discretion available to a judge sitting in civil proceedings to exclude unlawfully obtained evidence. Given the potential for significant delay and prejudice to the applicant and the second and third respondents, the court dismissed the application for leave to cross-claim against the proposed additional parties.

The court ordered that the notice of motion filed on 20 September 1994 for an order that Whitco Pty Ltd, Mervyn Harcourt-Cooze, Clayton Utz (a firm), Elizabeth Anne Milner, John Powell, and Victor Joseph Lipinski be joined as cross-claimants be dismissed. The final orders were made on 28 September 1994, dismissing the application for leave to cross-claim against the proposed additional parties.

Orders