FEDERAL COURT OF AUSTRALIA Forty Two International Pty Limited v Barnes (No 3) [2011] FCA 427 Citation: Forty Two International Pty Limited v Barnes (No 3) [2011] FCA 427 Parties: FORTY TWO INTERNATIONAL PTY LIMITED ACN 095 622 889, BLUEFREEWAY LIMITED ACN 122 262 819 and THE GANG OF 4 PTY LIMITED ACN 095 624 678 v KIM BARNES and LEE HAWKSLEY File number(s): NSD 2018 of 2008 Judge: YATES J Date of judgment: 4 May 2011 Cases cited: Forty Two International Pty Limited v Barnes (No 2) [2011] FCA 210 Date of hearing: 7 March 2011 Date of last submissions: 14 March 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Applicants: Mr J Ireland QC with Mr J Cooke Solicitor for the Applicants: Argyle Lawyers Pty Ltd Counsel for the Respondents: Mr R Dubler SC with Mr J Emmett Solicitor for the Respondents: Herbert Geer Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2018 of 2008 BETWEEN: FORTY TWO INTERNATIONAL PTY LIMITED ACN 095 622 889 First Applicant BLUEFREEWAY LIMITED ACN 122 262 819 Second Applicant THE GANG OF 4 PTY LIMITED ACN 095 624 678 Third Applicant AND: KIM BARNES First Respondent LEE HAWKSLEY Second Respondent JUDGE: YATES J DATE OF ORDER: 16 MARCH 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Each respondent provide by way of additional discovery a list of documents in accordance with O 15 r 6 comprising documents in the following category: For the period 1 October 2006 to 31 January 2008 all bank statements or other documents recording: (a) receipt of moneys by either of the respondents from the second applicant pursuant to: (i) the SPA (ii) the Exit Agreement; and (b) disbursements of those moneys from the account into which they were received by either respondent to any other account or payee. 2. Each applicant provide by way of additional discovery a list of documents in accordance with O 15 r 6 comprising documents in the following categories: In relation to Forty Two International board meetings between 1 January 2007 and 31 March 2008, all agenda, minutes, board papers and other documents placed before the Board at meetings that refer to any communications, negotiations or agreements between any directors or officers of the second applicant and Mr Dhillon of CMUK. and In relation to Bluefreeway board meetings between 18 October 2006 and 31 March 2008, all agenda, minutes, board papers and other documents placed before the Board at meetings that refer to any communications, negotiations or agreements between any directors or officers of the second applicant and Mr Dhillon of CMUK. 3. In each case, the list of documents be served by 28 March 2011 and inspection take place by 12 April 2011. 4. The respondents' notice of motion filed on 16 February 2011 (the respondents' notice of motion) be otherwise dismissed. 5. There be no order as to costs in relation to the respondents' notice of motion. 6. The respondents pay the applicants' costs of the applicants' notice of motion filed on 11 February 2011. 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 NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2018 of 2008 BETWEEN: FORTY TWO INTERNATIONAL PTY LIMITED ACN 095 622 889 First Applicant BLUEFREEWAY LIMITED ACN 122 262 819 Second Applicant THE GANG OF 4 PTY LIMITED ACN 095 624 678 Third Applicant AND: KIM BARNES First Respondent LEE HAWKSLEY Second Respondent JUDGE: YATES J DATE: 4 MAy 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In written reasons published on 11 March 2011 I stated that I would make orders providing for the giving of certain discovery by the applicants and the giving of certain discovery by the respondents: Forty Two International Pty Limited v Barnes (No 2) [2011] FCA 210. 2 There were two motions before the Court: one filed by the applicants on 11 February 2011 and one filed by the respondents on 16 February 2011. I made an order requiring the parties to submit a draft of orders to give effect to the reasons published on 11 March 2011. I also granted leave to the parties to make submissions in writing on the question of costs. 3 The applicants and respondents each provided a draft of the orders they seek and have made submissions on the question of costs. 4 After considering the drafts and the submissions, I made orders in Chambers on 16 March 2011. At the time the parties were informed that, in order to avoid unnecessary cost and inconvenience, I would publish my reasons for making those orders when the proceeding was next before the Court for directions. These are my reasons. 5 As to the question of costs, the applicants have submitted that, as they were successful in relation to their notice of motion filed on 11 February 2011, costs should follow the event. In relation to the respondents' notice of motion filed on 16 February 2011, the applicants have submitted that the respondents were only successful in obtaining discovery of two of the 11 categories of documents that were sought and that, as the respondents were substantially unsuccessful in their motion, this should be reflected in an award of costs in favour of the applicants. 6 For their part the respondents have submitted that the matters in dispute between the parties were substantially limited by discussions leading up to the hearing of each motion and that the costs of each party "should be attributed to the vicissitudes of litigation", with the result that costs should be treated as costs in the cause. 7 In my view, as the applicants were wholly successful on the issue raised by their motion, costs should follow the event, with the result that the respondents should pay the applicants' costs of that motion. 8 In relation to the respondents' motion, the issues in dispute related to two broad groups of documents. In relation to the first broad group, the respondents were successful in obtaining discovery. In respect of the second broad group of documents, the applicants were successful in resisting discovery. There has been a measure of success for each of the parties. In my view costs should lie where they fall. I will make no order as to costs in relation to the respondents' motion. 9 As to the form of the orders in relation to discovery, I have come to the view that I should only make orders directed to the categories of documents that were in dispute at the time of the hearing. In relation to the applicants' motion, the order should reflect the specific order they sought, which was limited to certain documents within the period 1 October 2006 to 31 January 2008. No wider form of order was argued. 10 In relation to the respondents' motion, I was informed at the hearing that only specific categories of documents identified in a schedule to an affidavit sworn by Ms Langtry were in dispute, agreement having been reached to discovery being given in respect of all other categories. Given that agreement, the order that I should make should deal only with my decision in relation to the disputed categories. The order should therefore reflect categories 4(n) and 7(n) of the schedule (with appropriate amendment to category 4(n) in relation to the typographical error pointed out by the respondents on the hearing of the motion).. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 4 May 2011