mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Klewer v Official Trustee in Bankruptcy [2008] FMCA 274
Outcome: cited
This matter involves an appeal from a decision of Raphael FM in Klewer v Official Trustee in Bankruptcy [2008] FMCA 274. The appeal is listed for hearing on Tuesday 16 September 2008. The appellants have applied by notice of motion filed on 5 September 2008 to adjourn the hearing of the appeal. The order sought is that the hearing of the notice of appeal listed for 16 September 2008 be adjourned pending the fitness of the first appellant, Ms Klewer, to attend Court. In affidavits in support of the motion, Ms Klewer has stated that she is unable to deal properly with the hearing of the main proceedings due to her poor health. She also states that the second appellant, her son, is disabled and unable to participate in the proceedings. 2 Ms Klewer says that when she is exposed to stressful situations, such as court hearings, her chest tightens and restricts her breathing in a way similar to a cardiac event. She states that she has been hospitalised on various occasions as a result of this condition, that she is under the care of various doctors and that she has not been able to appear or file submissions in this matter. 3 The medical evidence presented by Ms Klewer in support of her claims describes the symptoms related by Ms Klewer to the various doctors and the findings of those doctors following their examinations of her. It is clear from the medical reports provided to the Court by Ms Klewer that the doctors who have examined her have not been able to find any structural cardiac reasons for the symptoms that she describes. The conclusion that the various medical practitioners draw regarding Ms Klewer's chest pains is that the symptoms seem to be stress-related or, possibly, in the case of one opinion, that they are caused by gastro-oesophageal reflux. I note that the medical treatment for Ms Klewer's health problems is ongoing. There is reference to other medical problems but they are not the basis of the application for the adjournment of the hearing.
Case: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd (2005) FCA 366
Outcome: applied
recently, Lindgren J had cause to consider the operation of O 15 r 2(3) in Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd (2005) FCA 366. Significantly, after reciting r 2(3), his Honour said at par 23: 'In the rare case in which the Court grants leave to a party to give a notice requiring general discovery, that subrule operates, rather than, as formerly, the Peruvian Guano test, to identify the discoverable documents. The Explanatory Memorandum which accompanied the Federal Court Amendments Rules 1999 (No 6) (SR 1999 No 295) stated of the new subrule 2(3) that '[t]he aim of the rule is to limit the documents that must be discovered to those which are directly relevant to the proceedings.' This interpretation is consistent with: &#8226; Order 15 r 5, which is titled ' Order for General Discovery ', and provides: 'The Court may, at any stage of the proceeding, order any party to give discovery in accordance with rule 2.' &#8226; the amendments to O 15 r 2 in 1999, the aim of which, according to the Explanatory Statement Statutory Rules 1999 No 295, was 'to limit the documents that must be discovered to those which are directly relevant to the proceedings' (note also Advanced Medical Institute per Lindgren J at par 23) &#8226; Practice Note 14, which states that orders for discovery will ordinarily be limited to the documents required to be disclosed by O 15 r 2(3) &#8226; Order 15 r 8 which continues to use the language of Peruvian Guano but only in the context of particular discovery and &#8226; the authority of cases to which I have already referred, in particular Spyer , Aveling and Advanced Medical Institute .
Case: Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Federal Court of Australia, 22 June 1994)
Outcome: cited
terms 'possession, custody or power' in O 15 represent three alternative states. As summarised in one learned text: 'The term "possession" means the physical or corporeal holding of the document pursuant to a legal right to its possession... (for example, agents and bailees); "custody" means the mere actual physical or corporeal holding of a document, regardless of its right to possession, (for example, servants and employees)...; and "power" means an enforceable right to inspect the document or to obtain possession or control of it from the person who ordinarily has it in fact.' (SD Simpson, DL Bailey and EK, Evans Discovery and Interrogatories 2 nd edn, Butterworths, Australia, 1990 at 43, see also Halsbury's Laws of England 4 th edn vol 12 Discovery par 39. With respect to 'possession' and 'custody' see also Santow J in Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR [97557] at 14,371-14,372; Stephen J in Federal Commissioner of Taxation v ANZ Banking Group Ltd [1977] HCA 57 ; (1979) 143 CLR 499 at 504-505; and S Fisher Commercial and Personal Property Law, Butterworths, Australia, 1997 ch 3; and with respect to the meaning of 'power' see also Beaumont J in Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Federal Court of Australia, 22 June 1994) par 12 and Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-6.)
Case: Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 172 ALR 28
Outcome: cited
is no question that the administrator is the agent of the company to which he or she is appointed: s 437B. However, as made clear by s 437A(1) , administrators have very extensive powers over all aspects of the company's business, property and affairs. Indeed as the High Court noted in Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 172 ALR 28 at 30, Div 3 of Pt 5.3A Corporations Act 2001 (Cth) provides that the administrator of a company under administration is to assume control of the company's affairs. On the basis that the administrator had possession of the documents, the relationship of administrator and company as contemplated by Pt 5.3A Corporations Act does not permit the company other than with the consent of the administrator to have 'power' over documents retained by the administrator: s 438C (cf Lord Diplock's comments in Lonrho at 636H discussed earlier in this judgment).
Case: Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415
Outcome: applied
seems no doubt that, as a result of the 1999 amendments to O 15 r 2, the criteria in O 15 r 2(3) superseded the 'train of inquiry' test as the usual requirements for discovery. As pointed out by Branson J in Lubizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464 (par 9) '...unless the Court should order to the contrary, documents the relevance of which is only that they may fairly lead to a train of inquiry which may directly or indirectly enable one party to advance its case or change that of its opponent are not required to be discovered.' (note also Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 at par 10, The Hon Justice JW von Doussa 'Discovery in the Federal Court' Law Society of South Australia and the Federal Litigation Section Seminar, 14 March 2000; Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563 pars 4-8; Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415 at par 10). In Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415 , Lindgren J considered the principles which should guide the parties in identifying categories of documents. His Honour observed that they were the same principles which guide the Court when ordering discovery, and continued: 'It may be appropriate for parties to describe categories in terms which do not expressly incorporate the language of O 15 r 2(3), but that subrule should nonetheless govern the formulation of the categories. Alternatively, of course, the categories may be defined so as to incorporate expressly the terms of the subrule. Whatever approach is taken, it is important to understand that when, as happened in the present case, the Court orders discovery by categories to be notified by one party to another, the Court does not intend that the notifying party be at liberty to widen the discovery obligation beyond the four classes of documents referred to in O 15 r 2(3).' (par 11) This interpretation is consistent with: &#8226; Order 15 r 5, which is titled ' Order for General Discovery ', and provides: 'The Court may, at any stage of the proceeding, order any party to give discovery in accordance with rule 2.' &#8226; the amendments to O 15 r 2 in 1999, the aim of which, according to the Explanatory Statement Statutory Rules 1999 No 295, was 'to limit the documents that must be discovered to those which are directly relevant to the proceedings' (note also Advanced Medical Institute per Lindgren J at par 23) &#8226; Practice Note 14, which states that orders for discovery will ordinarily be limited to the documents required to be disclosed by O 15 r 2(3) &#8226; Order 15 r 8 which continues to use the language of Peruvian Guano but only in the context of particular discovery and &#8226; the authority of cases to which I have already referred, in particular Spyer , Aveling and Advanced Medical Institute .
Case: Federal Commissioner of Taxation v ANZ Banking Group Ltd [1977] HCA 57 ; (1979) 143 CLR 499
Outcome: cited
terms 'possession, custody or power' in O 15 represent three alternative states. As summarised in one learned text: 'The term "possession" means the physical or corporeal holding of the document pursuant to a legal right to its possession... (for example, agents and bailees); "custody" means the mere actual physical or corporeal holding of a document, regardless of its right to possession, (for example, servants and employees)...; and "power" means an enforceable right to inspect the document or to obtain possession or control of it from the person who ordinarily has it in fact.' (SD Simpson, DL Bailey and EK, Evans Discovery and Interrogatories 2 nd edn, Butterworths, Australia, 1990 at 43, see also Halsbury's Laws of England 4 th edn vol 12 Discovery par 39. With respect to 'possession' and 'custody' see also Santow J in Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR [97557] at 14,371-14,372; Stephen J in Federal Commissioner of Taxation v ANZ Banking Group Ltd [1977] HCA 57 ; (1979) 143 CLR 499 at 504-505; and S Fisher Commercial and Personal Property Law, Butterworths, Australia, 1997 ch 3; and with respect to the meaning of 'power' see also Beaumont J in Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Federal Court of Australia, 22 June 1994) par 12 and Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-6.)
Case: Hore-Lacy v David Syme and Co unreported Supreme Court of Victoria, 5 September 1996
Outcome: cited
a submission by the respondents that 'Mr Tracy is responsible for the day to day management of the company', I note that the financial records were produced to the Court by the administrator by subpoena on 21 July 2006. From this event, it is clear that the applicants do not have possession, custody or power over the records, other than as determined by the administrator in the exercise of his powers. In circumstances where a company is under administration, an order for non-party discovery or subpoena is the appropriate order to require the production of documents in the possession of the administrator (cf Beach J in Hore-Lacy v David Syme and Co unreported Supreme Court of Victoria, 5 September 1996, BC9604308 p 4). Order 15 r 15 provides: 'The Court shall not make an order under this Order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.' In the circumstances the court would be imposing an artificial tier of disclosure to order the third applicant to disclose the financial records.
Case: Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR [97557]
Outcome: cited
terms 'possession, custody or power' in O 15 represent three alternative states. As summarised in one learned text: 'The term "possession" means the physical or corporeal holding of the document pursuant to a legal right to its possession... (for example, agents and bailees); "custody" means the mere actual physical or corporeal holding of a document, regardless of its right to possession, (for example, servants and employees)...; and "power" means an enforceable right to inspect the document or to obtain possession or control of it from the person who ordinarily has it in fact.' (SD Simpson, DL Bailey and EK, Evans Discovery and Interrogatories 2 nd edn, Butterworths, Australia, 1990 at 43, see also Halsbury's Laws of England 4 th edn vol 12 Discovery par 39. With respect to 'possession' and 'custody' see also Santow J in Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR [97557] at 14,371-14,372; Stephen J in Federal Commissioner of Taxation v ANZ Banking Group Ltd [1977] HCA 57 ; (1979) 143 CLR 499 at 504-505; and S Fisher Commercial and Personal Property Law, Butterworths, Australia, 1997 ch 3; and with respect to the meaning of 'power' see also Beaumont J in Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd (Federal Court of Australia, 22 June 1994) par 12 and Lord Diplock in Lonrho Limited v Shell Petroleum (1980) 1 WLR 627 at 635-6.)
Case: Kennedy v Dodson (1895) 1 Ch 334
Outcome: cited
respondents have indicated that this document is annexed to the affidavit of Mr Strahley sworn and filed 12 July 2006. However, as submitted by the applicants, inclusion of a document as an annexure to an affidavit is not, in itself, proper discovery of the document. While the rules of discovery have been subject to change over time and in different courts, the comments of Lindley LJ in Kennedy v Dodson (1895) 1 Ch 334 at 340 over a century ago continue to apply, namely: 'It is the right, as a general rule, of a plaintiff in equity to exact from the defendant a discovery upon oath as to all matters of fact which, being well pleaded in the bill, are material to the plaintiff's case about to come on for trial, and which the defendant does not by his form of pleading admit.'
Case: Lubizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464
Outcome: applied
seems no doubt that, as a result of the 1999 amendments to O 15 r 2, the criteria in O 15 r 2(3) superseded the 'train of inquiry' test as the usual requirements for discovery. As pointed out by Branson J in Lubizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464 (par 9) '...unless the Court should order to the contrary, documents the relevance of which is only that they may fairly lead to a train of inquiry which may directly or indirectly enable one party to advance its case or change that of its opponent are not required to be discovered.' (note also Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 at par 10, The Hon Justice JW von Doussa 'Discovery in the Federal Court' Law Society of South Australia and the Federal Litigation Section Seminar, 14 March 2000; Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563 pars 4-8; Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415 at par 10).
Case: Reading Entertainment Australia Pty Ltd v Birch Carroll &amp; Coyle Ltd [2002] FCAFC 109
Outcome: cited
history of the law in this area, and more recent cases, indicates that 'general discovery' means an unqualified or unlimited order for discovery, possibly in one of the following forms: &#8226; as noted by Beaumont J in Reading Entertainment Australia Pty Ltd v Birch Carroll &amp; Coyle Ltd [2002] FCAFC 109 at 70, quoting Butterworths Practice &amp; Procedure of the Federal Court at [40.760] 'general discovery as traditionally understood'. This refers to discovery of any document which may fairly lead to a train of inquiry, as per the Peruvian Guano test, and is consistent with the submissions of the respondent; or &#8226; as submitted by the applicants, 'general discovery' as is now contemplated by O 15 r 2(3) (The court may make an order for particular discovery in broader terms under O 15 r 8). The respondents have referred to comments of Beaumont J in Reading Entertainment at par 70 concerning the court ordering general discovery following the 1999 amendments, however in my view his Honour's observations were referable to extraordinary circumstances where the courts may order discovery in accordance with the Peruvian Guano test. Although his Honour did not give the example, an order pursuant to O 15 r 8 would be an instance of such a circumstance. The consent order made on 15 February 2006 was in my view an unqualified order for general discovery, as contemplated by O 15 r 5, and requiring discovery of documents as contemplated by O 15 r 2, in particular subrule 2(3). Accordingly, the 'train of inquiry' test as posed by the respondents in this case is not applicable. It is appropriate to consider the remaining documents in the Schedule where this test is sought to be applied, in that light. Other documents as listed in the Schedule were not the subject of written submissions by counsel. The Schedule does however provide a summary of the communications between the applicants and the respondents on the issue of discovery of these documents. Item 10 Rain data records In seeking discovery of these documents, which are identified as rain data records of the first or second applicant in respect of the Bundaberg and Tairo Orchards, the respondents claim they are relevant to loss and damage, and cite par 21 of the amended Statement of Claim and par 30 of the Defence.
Case: Re McGorm; ex parte Co-operative Building Society of SA (1989) 86 ALR 275
Outcome: cited
earlier, Lyndhurst LC in Taylor v Rundell (1841) Cr &amp; Ph 104, 41 ER 429 framed discovery in terms of an obligation which parties to litigation must satisfy: 'If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it.' (ER 433, cf more recently von Doussa J in Re McGorm; ex parte Co-operative Building Society of SA (1989) 86 ALR 275 at 278 and Tamberlin J in KC v Shiley Inc [1997] 796 FCA (14 August 1997).)
Case: Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563
Outcome: considered
seems no doubt that, as a result of the 1999 amendments to O 15 r 2, the criteria in O 15 r 2(3) superseded the 'train of inquiry' test as the usual requirements for discovery. As pointed out by Branson J in Lubizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464 (par 9) '...unless the Court should order to the contrary, documents the relevance of which is only that they may fairly lead to a train of inquiry which may directly or indirectly enable one party to advance its case or change that of its opponent are not required to be discovered.' (note also Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 at par 10, The Hon Justice JW von Doussa 'Discovery in the Federal Court' Law Society of South Australia and the Federal Litigation Section Seminar, 14 March 2000; Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563 pars 4-8; Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415 at par 10). The history to the amendment to O 15 r 2(3) was explained by Lindgren J in Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563. His Honour in that case also observed that the broader test of 'relating to any matter in question in the proceeding', which derives from the Peruvian Guano case, continues to be used in the context of O 15 r 8 (par 6 of Spyer ), and that in this respect there is a disconformity between the tests of discoverability as between O 15 r 2(3) and r 8 (par 7 of Spyer ). In my view, in the absence of qualifications or limitations to an order for discovery, the correct interpretation is that the discovery ordered by the Federal Court pursuant to O 15 is that contemplated by O 15 r 2(3), as submitted by the applicants. Clearly this will not be the case if the Court makes an order pursuant to O 15 r 8, which, as pointed out by Lindgren J in Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563 , seems to countenance a continuation of the broader test of discoverability. This interpretation is consistent with: &#8226; Order 15 r 5, which is titled ' Order for General Discovery ', and provides: 'The Court may, at any stage of the proceeding, order any party to give discovery in accordance with rule 2.' &#8226; the amendments to O 15 r 2 in 1999, the aim of which, according to the Explanatory Statement Statutory Rules 1999 No 295, was 'to limit the documents that must be discovered to those which are directly relevant to the proceedings' (note also Advanced Medical Institute per Lindgren J at par 23) &#8226; Practice Note 14, which states that orders for discovery will ordinarily be limited to the documents required to be disclosed by O 15 r 2(3) &#8226; Order 15 r 8 which continues to use the language of Peruvian Guano but only in the context of particular discovery and &#8226; the authority of cases to which I have already referred, in particular Spyer , Aveling and Advanced Medical Institute .
Case: South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519
Outcome: cited
seems no doubt that, as a result of the 1999 amendments to O 15 r 2, the criteria in O 15 r 2(3) superseded the 'train of inquiry' test as the usual requirements for discovery. As pointed out by Branson J in Lubizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464 (par 9) '...unless the Court should order to the contrary, documents the relevance of which is only that they may fairly lead to a train of inquiry which may directly or indirectly enable one party to advance its case or change that of its opponent are not required to be discovered.' (note also Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 at par 10, The Hon Justice JW von Doussa 'Discovery in the Federal Court' Law Society of South Australia and the Federal Litigation Section Seminar, 14 March 2000; Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) (2002) FCA 1563 pars 4-8; Aveling v UBS Australia Capital Markets Holdings Ltd [2005] FCA 415 at par 10).
Case: Taylor v Rundell (1841) Cr &amp; Ph 104, 41 ER 429
Outcome: cited
earlier, Lyndhurst LC in Taylor v Rundell (1841) Cr &amp; Ph 104, 41 ER 429 framed discovery in terms of an obligation which parties to litigation must satisfy: 'If it is in your power to give the discovery, you must give it; if not, you must show that you have done your best to procure the means of giving it.' (ER 433, cf more recently von Doussa J in Re McGorm; ex parte Co-operative Building Society of SA (1989) 86 ALR 275 at 278 and Tamberlin J in KC v Shiley Inc [1997] 796 FCA (14 August 1997).)