FEDERAL COURT OF AUSTRALIA Brookfield v Yevad Products Pty Ltd [2003] FCA 876 IAN WALTER BROOKFIELD & SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) v YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192 SG 112 OF 1993 MANSFIELD J 15 AUGUST 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 112 OF 1993 BETWEEN: IAN WALTER BROOKFIELD & SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) APPLICANTS AND: YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192 RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 15 AUGUST 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The orders sought by the applicants' motion dated 11 August 2003 be refused. 2. Costs of the applicants' motion dated 11 August 2003 be the respondent's costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 112 OF 1993 BETWEEN: IAN WALTER BROOKFIELD & SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) APPLICANTS AND: YEVAD PRODUCTS PTY LTD (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LTD) ACN 004 813 192 RESPONDENT JUDGE: MANSFIELD J DATE: 15 AUGUST 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The application is listed for hearing commencing on 4 September 2003. In accordance with directions, the completion of the process of filing and serving proposed evidence has recently been completed. 2 In the light of it, the applicants by motion dated 11 August 2003 have sought two orders. As they were explained today by Mr Brookfield, appearing in person, they are firstly, an order for summary judgment setting aside the judgments of Branson J of 8 February 1996 and on costs on 19 December 1997 (and I add, by inference, the Full Court decision). It would follow, if that order were granted, that there would be a need to address the applicants' claim in the principal proceedings which were the subject of those judgments and to determine what, if any, entitlement the applicants had to damages against the respondent. The second order which is sought is an order directing the respondent to file further evidence to explain, or to better explain, the source of documents which the applicants assert have only been discovered since the hearing before Branson J and to explain, or better explain, why those documents were not discovered in a timely manner during the pre-trial procedures before the initial hearing. 3 As to the first application, which is in the nature of a summary judgment application, the principles are very clear: the Court should grant summary judgment only in the clearest of cases. In my view this is not such a case. Ultimately, the question whether the primary judgment should be set aside will depend upon the applicants being able to prove not just that the discovery given during the course of the pre-trial procedures for the principal action were inadequate and significantly inadequate, and that had proper discovery been given the outcome of the proceedings was very likely to have been different, but it is also necessary for the applicants to prove the motive or reasons why the initial discovery was as inadequate as they allege it to be. In effect, putting it a little crudely, they must prove that the respondent deliberately or fraudulently refrained from giving proper discovery. 4 I am not persuaded that, upon all of the evidence which is proposed to be adduced at the trial of this application, the case is so clear that summary judgment should be ordered. I do not think that there is such a strength of evidence that the Court should take the view that there is no real prospect of the respondent's failure to give adequate and proper discovery - assuming that it did fail to give adequate and proper discovery – being found to have been due to other than deliberate or fraudulent conduct on its part. In other words, I do not think the evidence so clearly demonstrates that the alleged inadequacy in the respondent's discovery (some inadequacy seems clear enough) was due to dishonesty or fraud on its part that there should be summary judgment setting aside the original judgment. That is a matter of fact which will have to be determined upon the whole of the evidence. 5 I therefore do not need to determine whether in fact the discovery given by the respondent in the course of the pre-trial procedures before the principal action was inadequate and, if inadequate, inadequate in a significant way such as was likely to have affected the outcome of the proceeding. Mr Brookfield has pointed to evidence which, if accepted, will demonstrate those matters, but it is not simply a matter of pointing to evidence which, if accepted, will demonstrate those matters. It is necessary to be satisfied, in effect, that there is no real defence to the action and to be satisfied to a high standard. I am not so satisfied. In expressing my conclusion that way, I am not to be taken as indicating any view about the strength or weakness of the applicants' case other than that it does not reach the level of persuasion necessary to enter summary judgment. 6 The second aspect of the application, in my judgment, should also be refused. I think it demonstrates some misunderstanding on the part of the applicants, through Mr Brookfield, as to the nature of the process which will be undertaken at the trial. It is not for the Court to direct that the respondent adduce particular evidence. It is up to the respondent to determine what evidence it adduces at the hearing of this application. It may choose to adduce no evidence. 7 In that event, as I said to Mr Brookfield, depending upon the status and force of the evidence which the applicants have adduced, he may be in a position to invite the Court very readily to draw inferences adverse to the respondent about its failure to have given proper discovery, and the reasons for its failure to have given proper discovery, during the pre-trial procedures before the principal proceedings. That is, of course, assuming that it did fail to give such discovery. But that is up to the respondent. If the respondent chooses not to dispute evidence adduced by the applicants, it is more likely that the applicants' evidence will be accepted. It need not necessarily be accepted, but it may be more likely that it will be accepted. 8 If there is a failure on the part of the respondent to have given notice of evidence by the filing of its affidavits which meets significant parts of the applicants' case, that may be better for the applicants as they may embark upon the hearing of the application with more confidence than might otherwise have been the case. But it does not lead to the Court directing the respondent to produce more evidence, or to adduce certain evidence which it has chosen not to adduce. That is a matter for the respondent. 9 Accordingly, I do not direct the respondent to adduce further evidence prior to the hearing. In that circumstance, it does not arise that it is necessary to adjourn the hearing whilst the respondent complies with any such order. 10 I propose to refuse the orders sought in the document entitled Supplementary Notice of Motion to Amended Notice of Motion Filed 1 May 2003, a document dated and filed on 11 August 2003. Counsel for the respondent has sought costs on that motion. In my view the appropriate order is that the costs of that motion should be the respondent's costs in the cause. If the applicants fail in their present application, the respondent will recover costs of the motion in any event. If the applicants succeed on the present application, which is listed for hearing commencing on 4 September 2003, they will not get costs of today's motion, but the costs of today's motion will not be awarded against them. I order that the costs of the motion be the respondent's costs in the cause. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 28 August 2003 Counsel for the Applicants: Mr I W Brookfield appeared in person. Counsel for the Respondent: Mr J White Solicitor for the Respondent: Thomson Playford Date of Hearing: 15 August 2003 Date of Judgment: 15 August 2003