FEDERAL COURT OF AUSTRALIA P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 3) [2010] FCA 246 Citation: P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 3) [2010] FCA 246 Parties: P DAWSON NOMINEES PTY LTD and FREDERICK HENRY HART v BROOKFIELD MULTIPLEX LIMITED and BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED File number: VID 1380 of 2006 Judge: FINKELSTEIN J Date of judgment: 18 March 2010 Date of written submissions: Applicants: 10, 12 & 16 March 2010 Respondents: 10, 12, 15 & 16 March 2010 Place: Melbourne Division: GENERAL Category: No Catchwords Number of paragraphs: 4 Appearing for the Applicants: Mr A Watson Solicitor for the Applicants: Maurice Blackburn Counsel for the Respondents: Mr T F Bathurst QC with Mr S F Nixon Counsel for the Respondents: Mallesons Stephen Jaques IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1380 of 2006 BETWEEN: P DAWSON NOMINEES PTY LTD and FREDERICK HENRY HART Applicants AND: BROOKFIELD MULTIPLEX LIMITED and BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 18 MARCH 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Applicants have leave to file an Amended Application and Amended Case Summary in the form exhibited to the affidavit of David Niven dated 21 January 2010 on or before 8 March 2010. 2. The Respondents file and serve an affidavit on or before 11 March 2010 setting out the basis of any claim for privilege in respect of the documents discovered by the Respondents. 3. The Applicants file and serve any notice of motion seeking orders for inspection of documents subject to a claim for privilege on or before 17 March 2010. 4. On or before 17 March 2010, the persons identified in Tab 1 of Confidential Exhibit MLS-1 to the affidavit of Moira Saville sworn 20 January 2010 (except for any person who has indicated they wish to opt out of these proceedings) ("Institutional Investors") each make discovery by providing a copy of any litigation funding agreement (or similar document) it entered into, in its own capacity or otherwise, with either International Litigation Funding Partners, Inc. (now known as 2117980 Ontario Inco.) or International Litigation Funding Partners Pte Limited, in relation to this proceeding. 5. The solicitors for the Applicants serve copies of this order on each of the Institutional Investors. 6. The Respondents file a Case Summary in Reply on or before 5 April 2010. 7. The Respondents make discovery, on or before 6 April 2010, of any documents (other than those already discovered by any party in this proceeding) which the Respondents are aware have significant probative value in relation to the issues raised in the parties' respective case summaries, other than documents relevant to Part A, Section 6; Part B, paragraph 88; and Part C of the Respondents' Case Summary. 8. A Pre-Trial Case Management Conference be held before the Honourable Justice Finkelstein on 13 April 2010 at 11.00 am, regarding: (a) the common issues of fact and/or law to be determined at the initial trial of this proceeding; (b) other issues of fact and/or law to be determined at the initial trial of this proceeding; (c) any application under section 33J of the Act amending group definition; (d) the time and date before which a group member may opt out of this proceeding pursuant to section 33J of the Act; (e) the form and content of the Opt Out Notice; (f) provision of the Opt Out Notice to Group Members; and (g) any other matters necessary or incidental to the initial trial of this proceeding. 9. By 14 June 2010, the Applicants file and serve: (a) affidavits from all lay witnesses who are proposed to be called as witnesses at the initial trial or, in the case of such witnesses who decline to swear affidavits, file and serve written outlines of the evidence which the solicitors for the applicants expect such witnesses will give; (b) affidavits containing all evidence in the nature of expert evidence upon which they intend to rely at the initial trial; and (c) a list of all documents which at that time the applicants propose to tender at the initial trial (including copies of any documents which have not been discovered). 10. By 13 August 2010, the Respondents file and serve: (a) affidavits from all lay witnesses who are proposed to be called as witnesses at the initial trial or, in the case of such witnesses who decline to swear affidavits, file and serve written outlines of the evidence which the solicitors for the respondent expect such witnesses will give; (b) affidavits containing all evidence in the nature of expert evidence upon which they intend to rely at the initial trial; and (c) a list of all documents which at that time the respondents propose to tender at the initial trial (including copies of any documents which have not been discovered). 11. By 17 September 2010, the Applicants file and serve: (a) any affidavits in reply (including those affidavits in reply containing expert evidence) or, in the case of such witnesses who decline to swear affidavits, written outlines of the evidence which the solicitors for the applicants expect such witnesses will give in reply; and (b) a list of any additional documents which they propose to tender (including any copies of additional documents which have not been discovered); 13. By 27 September 2010, the Applicants file and serve a bundle of all documents proposed to be tendered by the parties at the initial trial (proposed tender bundle), organised in chronological order as far as is practicable and paginated and indexed. 14. The matter be set down for trial on 4 October 2010 for a period to be determined at the Pre-Trial Case Management Conference. 15. The parties have liberty to apply on two days' notice. 16. Costs be reserved. 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 Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 1380 of 2006 BETWEEN: P DAWSON NOMINEES PTY LTD and FREDERICK HENRY HART Applicants AND: BROOKFIELD MULTIPLEX LIMITED and BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED Respondents JUDGE: FINKELSTEIN J DATE: 18 March 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 4 March 2010 I delivered reasons for judgment in this matter ([2010] FCA 176), and indicated the parties would be provided with suggested minutes of orders for their comment. A draft order, based largely on minutes of consent orders agreed by the parties, was subsequently circulated. Most of the issues regarding the suggested orders have been resolved, save for one. 2 In my 4 March judgment, on the motion by the applicants for discovery, I proposed that Multiplex discover two categories of documents being (1) all documents upon which they intend to rely at the trial; and (2) all documents which have significant probative value in relation to the issues raised in the parties' respective case summaries. 3 Multiplex object to orders in this form, for two principal reasons. First, Multiplex essentially argue that proposed category one is unfair, because it would require Multiplex to discover (and therefore identify) documents upon which they intend to rely at trial at a premature stage of the proceeding, and in particular, before the applicants are required to do so. Subject to one qualification discussed below, Multiplex do not object to discovering the second proposed category of documents (ie documents of substantive probative value). At this stage of the proceeding, it is important that all relevant documents which might be relied upon by the respondents at trial are discovered. To the extent that such documents are not already discovered, those documents would highly likely be discovered under proposed category two. Documents which would be covered by proposed category one would also likely be covered by category two in any event. Accordingly, for the moment, I consider that proposed category one is not necessary. 4 Second, Multiplex argue that proposed category two should exclude documents relating to what has colloquially been referred to as the 'construction case', being legal claims Multiplex allegedly prosecuted against third parties in relation to Wembley construction works. There has been some discussion in earlier hearings about deferring consideration of construction case issues until after the trial on all other issues. It is apparent from recent correspondence that there is some uncertainty about what precise issues are contemplated to be deferred. I propose to deal with this issue at the next hearing. For the moment, I am content to adopt the exclusion proposed by the respondents. Once the scope of the issues to be deferred has been resolved, it may be necessary to order further discovery in respect of documents which are excluded under category two, but are relevant to issues to be resolved at the trial which will commence in October. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 18 March 2010