Forty Two International Pty Limited v Barnes [2010] FCA 397

FEDERAL COURT OF AUSTRALIA

Forty Two International Pty Limited v Barnes [2010] FCA 397

Citation: Forty Two International Pty Limited v Barnes [2010] FCA 397

Parties: FORTY TWO INTERNATIONAL PTY LIMITED ACN 095 622 889 and BLUEFREEWAY LIMITED ACN 122 262 819 v KIM BARNES and LEE HAWKSLEY

File number: NSD 2018 of 2008

Judge: YATES J

Date of judgment: 30 APRIL 2010

Catchwords: PRACTICE AND PROCEDURE – application to stay or dismiss the proceeding as an abuse of process – whether the proceeding was commenced on the basis of documents produced by the respondents in answer to subpoenas issued in a separate proceeding in the court and on information derived from the production by them of those documents – whether the use of the documents and information in the present proceeding was in breach of an obligation to the court, imposed by law, to use the documents and information only in and for the purposes of the other proceeding – relevant principles discussed – whether the applicants are relieved from such obligation by operation of O 15 r 18 FCR – whether the contents of the documents were disclosed within the meaning of O 15 r 18 FCR – whether O 15 r 18 FCR has an ambulatory operation – whether leave can be granted retrospectively to use the documents and information in and for the purposes of this proceeding – whether leave should be granted HELD: Leave should be granted nunc pro tunc to use the documents and information in and for the purposes of this proceeding PRACTICE AND PROCEDURE – application to stay or dismiss the proceeding as an abuse of process – whether the proceeding commenced for the collateral and improper purpose of intimidating or harassing the respondents as potential witnesses in another proceeding in the court and assisting the applicants as party respondents in that other proceeding HELD: Relief refused–the proceeding was not commenced solely or substantially for the collateral and improper purpose alleged PRACTICE AND PROCEDURE – whether the statement of claim should be struck out pursuant to O 11 r 16 FCR HELD: The statement of claim should be struck out in part PRACTICE AND PROCEDURE – whether leave should be granted to file an amended application and an amended statement of claim substantially in the form proposed by the applicants. HELD: Leave refused