Gurtler v Finance Now Pty Ltd [2009] FCA 631

FEDERAL COURT OF AUSTRALIA

Gurtler v Finance Now Pty Ltd [2009] FCA 631

PRACTICE AND PROCEDURE - applications by respondents to vary an order for security for costs - whether material change of circumstances - relevance of discovery obligation, joinder of parties and re-pleading. Corporations Act 2001 (Cth),s 1335 Federal Court of Australia Act 1976 (Cth), s 56 Federal Court Rules Order 28 rule 3 Bell Wholesale Co Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1 Capital Webworks Pty Ltd v Adultshop.com.Limited [2002] FCA 1420 Crypta Fuels Pty Ltd v Svelte Corp Pty Ltd (1995) 19 ACSR 68 Chapman v Luminis Pty Ltd [2002] FCA 496 Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr, Sackville JJ, 17 May 1996) January Force Pty Ltd v Tricon Restaurants Australia Pty Ltd [1999] FCA 1746 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 Winnote Pty Ltd (In Liq) v Page (2005) 64 NSWLR 244 Wyong-Gosford Progressive Community Radio Inc v Australian Communications Media Authority (No 2)[2006] FCA 1043 CHRISTOPHER GURTLER and LOANPOS LIMITED (IN LIQUIDATION) (ACN 091 687 615) v FINANCE NOW PTY LTD (ACN 102 197 973), KOSTA PATSAN and MALCOLM BLIGH TURNBULL

WAD 222 of 2005

GILMOUR J

15 JUNE 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 222 of 2005

BETWEEN: CHRISTOPHER GURTLER

First Applicant

LOANPOS LIMITED (IN LIQUIDATION) (ACN 091 687 615)

Second Applicant

AND: FINANCE NOW PTY LTD (ACN 102 197 973)

First Respondent

KOSTA PATSAN

Second Respondent

MALCOLM BLIGH TURNBULL

Third Respondent

JUDGE: GILMOUR J

DATE OF ORDER: 15 JUNE 2009

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The orders providing for security for costs contained in paragraphs 5.2 and 5.3 of the orders made by Justice Lee on 9 December 2005 be vacated. 2. In addition to the order providing for security for costs contained in paragraph 5.1 of the orders made by Justice Lee on 9 December 2005, the first and second applicants together provide the first and third respondents security for costs by way of Bank Guarantee in a form to be agreed between the parties and if not agreed in a form acceptable to the Registrar in two tranches as follows: (a) $350,000 within 7 days; (b) $200,000 within 7 days of the proceeding being listed for trial. 3. In addition to the order providing for security for costs contained in paragraph 6 of the orders made by Justice Lee on 9 December 2005, the first and second applicants together provide the second respondent's security for costs by way of Bank Guarantee in a form to be agreed between the parties and if not agreed in a form acceptable to the Registrar in two tranches as follows: (a) $100,000 within 7 days; and (b) $50,000 within 7 days of the proceeding being listed for trial. 4. If the Bank Guarantee ordered to be provided pursuant to Orders 2(a) and 3(a) above is not provided by the applicants by 22 June 2009, these proceedings, including the operation of Orders 6 to 14 of these Orders, be stayed until those Bank Guarantees are provided. 5. If the Bank Guarantees ordered to be provided pursuant to Orders 2(b) and 3(b) are not provided by the applicants within 7 days of the proceedings being listed for trial, these proceedings be stayed until those Bank Guarantees are provided. Confidentiality and Redacted Materials – Negotiation by the parties 6. The solicitors for each respondent, by email to the applicants' solicitors to be delivered by 29 June 2009: (a) identify each document a respondent still wishes to be treated as confidential for the purposes of paragraph 4 of the orders made on 27 August 2008; (b) in relation to each document so identified, state the grounds and material facts on which the respondent contends the document should not be divulged to the applicants, their advisers and witnesses; (c) provide copies to the applicants of all documents which previously contained redacted material but no longer contain redacted material; (d) identify each document still containing redacted material, other than documents with portions masked pursuant to paragraph 5 of the orders made on 27 August 2008; and (e) in relation to each document still containing redacted material, other than documents with portions masked pursuant to paragraph 5 of the orders made on 27 August 2008, state the grounds and material facts on which the redacted material in each document is alleged to be privileged. 7. The solicitors for the applicants, by email to the respondents' solicitors to be delivered by 6 July 2009: (a) identify each document, identified by a respondent as confidential, which the applicants contend should be divulged to the applicants, their advisers and witnesses; (b) in relation to each document so identified, state the grounds and material facts on which the applicants contend the document should be divulged to the applicants, their advisers and witnesses; and (c) in relation to each document still containing redacted material, other than documents with portions masked pursuant to paragraph 5 of the orders made on 27 August 2008, for which the applicants dispute the redaction, state the grounds and material facts for that dispute. 8. The solicitors for the parties confer on a "without prejudice" basis by telephone by 9 July 2009 and endeavour to resolve all differences (if any) then remaining as to confidentiality and redacted material. Confidentiality and Redacted Materials - Referral to the Court 9. If following the telephone conference provided for in Order 8, the parties remain in dispute as to confidentiality or redacted material, the applicants to notify the party who gave discovery of the document by email no later than 15 July 2009, identifying the documents still under dispute by reference to the document identification number and whether the dispute is in relation to confidentiality or redaction. 10. In relation to each document remaining in dispute after 15 July 2009 as to confidentiality or redacted material: (a) by 22 July 2009 the respondent file and serve: (i) written submissions not exceeding 10 pages, (ii) any further affidavit in support, and (iii) an indexed book containing a copy of each such document which the respondent contends should not be divulged to the applicants, their advisers and witnesses on grounds of confidentiality; (b) by 22 July 2009 the respondent file but not serve an indexed book in an envelope, to be marked with the words "Confidential and Privileged - Not to be opened without Court Order or written consent of all parties", containing a copy of each document which the party contends contains privileged material, with that material clearly identified; (c) by 27 July 2009 the applicants file and serve: (i) written submissions not exceeding 10 pages, and (ii) any further affidavit in support. 11. Any dispute as to confidentiality and redacted material thereafter be determined by the Court on the papers. 12. Exhibit "A" to the affidavit of Andrew John Mason sworn 26 March 2009 be placed in a sealed envelope to be marked with "Confidential - Not to be opened without Court Order or written consent of the First and Third Respondents". 13. Until further order the book of documents containing allegedly privileged material and exhibit "A" to the affidavit of Andrew John Mason sworn 26 March 2009 are not to be accessed by any person except a judicial officer of this Court or the first or third respondent or their legal representatives, and there be liberty to apply in that regard. Directions hearing 14. There be a directions hearing at 9.30 am on 10 September 2009. Costs 15. The first and second applicants pay the first and third respondents' costs of the motion for security for costs. 16. The first and second applicants pay the second respondents' costs of the motion for security for costs. 17. The costs related to these orders which concern confidentiality and redacted materials are to be in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA