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Federal Court of Australia |
Last Updated: 3 February 2000
Kirella Pty Ltd v Hooper [1999] FCA 1839
KIRELLA PTY LIMITED v
KENNETH FRANCIS HOOPER, HOOPER COMMUNICATIONS PTY LTD, KATHERINE MAYSON AND JIM PHOTIOS
N 1036 OF 1999
TAMBERLIN J
SYDNEY
23 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
N 1036 OF 1999 |
BETWEEN: |
KIRELLA PTY LIMITED (ACN 079 721 127) APPLICANT |
AND: |
KENNETH FRANCIS HOOPER FIRST RESPONDENT HOOPER COMMUNICATIONS PTY LTD (ACN 060 554 805) SECOND RESPONDENT KATHERINE MAYSON THIRD RESPONDENT JIM PHOTIOS FOURTH RESPONDENT |
JUDGE: |
TAMBERLIN J |
DATE: |
23 DECEMBER 1999 |
PLACE: |
SYDNEY |
1. On page 14, above par 27, the heading "O 15A r 3 - Indemnity Discovery" is deleted.
2. On page 17, above par 33, the heading "O15A r 6 - information" is replaced by "O15A r 6 - Information discovery"
I certify that this is a true copy of
the Corrigendum made to the reasons
for judgment in this matter of the
Honourable Justice Tamberlin.
Associate:
Date: 31 December 1999
Kirella Pty Ltd v Hooper [1999] FCA 1839
PRACTICE AND PROCEDURE - Preliminary discovery - need for reasonable inquiries - whether reasonable inquiries had been made - whether evidence sufficient to identify parties - whether should have enquired of prospective party or consulted publicly available documents - campaign to oppose large scale development - whether sufficient evidence to make a decision to commence proceedings against ascertained persons or entities, directors, consultants, agents
Trade Practices Act 1974 (Cth)
Federal Court Rules O 15A rr 3 and 6
Kirella Pty Limited v Hooper [1999] FCA 169; (1999) 161 ALR 447 followed
Airservices Australia v Transfield [1999] FCA 886; (1999) 164 ALR 330 followed
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358 followed
Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 20 IPR 79, 99 ALR 728 cited
Aitken v Neville Jeffress Pidler Pty Ltd [1991] FCA 651; (1991) 33 FCR 418 cited
Concrete Constructions Group Pty Ltd v Commonwealth (Sheppard J, 22 April 1996, unreported) cited
KIRELLA PTY LIMITED v
KENNETH FRANCIS HOOPER, HOOPER COMMUNICATIONS PTY LTD, KATHERINE MAYSON AND JIM PHOTIOS
N 1036 OF 1999
TAMBERLIN J
SYDNEY
23 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
JUDGE: |
TAMBERLIN J |
DATE: |
23 DECEMBER 1999 |
PLACE: |
SYDNEY |
1 This application for preliminary discovery is resisted by the respondents, Kenneth Hooper ("Hooper") and Hooper Communications Pty Limited ("Hooper Communications") and Katherine Mayson ("Mayson")
2 The proceeding was instituted by an application filed on 1 October 1998 seeking Preliminary Discovery under O 15A rr 3 and 6 of the Federal Court Rules ("the Rules"). The orders sought were that the respondents and each of them should attend before the Court to be examined and to produce any document or thing in relation to the identity or description of the authors, publishers or makers of alleged misrepresentations, contained in certain documents, and to make discovery of any documents relating to the question whether the applicant had any right to obtain relief in the Court.
3 A Constitutional challenge was made to the jurisdiction and power of the Federal Court to grant preliminary discovery on the ground that a proceeding under O 15A did not give rise to a "matter" in respect of which the Federal Court had jurisdiction. The Constitutional challenge was rejected both at first instance and also on appeal by the Full Federal Court: see Kirella Pty Limited v Hooper [1999] FCA 169; (1999) 161 ALR 447 (Tamberlin J); Airservices Australia v Transfield [1999] FCA 886; (1999) 164 ALR 330 (Finn J); and Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358 (Wilcox, Sackville and Katz JJ).
4 An application for special leave to appeal to the High Court has now been filed and it was anticipated as of early December 1999 that the matter might come before the High Court for determination during or shortly after April 2000.
5 This hearing is not concerned with the ultimate determination of the rights of the parties in the contemplated proceeding, but it is preliminary to the initiation of that proceeding. Preliminary discovery is for the purpose of determining, after reasonable inquiries have been made, the identity of prospective respondents, and of ascertaining whether there is sufficient information to commence proceedings to obtain the relief sought. This in turn involves ascertaining what forms of relief can be sought. It is often not possible to decide what relief is appropriate until the nature of the surrounding circumstances has been exposed.
6 An application was made before me prior to the hearing of this preliminary discovery application to in effect adjourn the hearing of the application pending determination by the High Court of the special leave application. In view of the fact that the proceedings were instituted over fourteen months ago and that the challenge has now been rejected by five Judges of this Court, and having regard to the preliminary nature of the application and the need for the matter to progress, I declined to adjourn the filing of evidence and the hearing of the application for preliminary discovery.
The Rules
7 The relevant rules of Order 15A are as follows.
8 Rule 3 is concerned with ascertaining the identity of a prospective respondent.
"3(1) Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person ... and it appears that some person has or is likely to have knowledge of facts, or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may make an order...(2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall -
(a) attend before the Court to be examined in relation to the
description of the person concerned;
(b) make discovery to the applicant of all documents which are or
have been in the person's or its possession relating to the
description of the person concerned." (Emphasis added).
9 Rule 6 of Order 15A is concerned with the obtaining of information to enable a decision to be made whether to commence a proceeding in the court. It reads:
"6. Where:(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;
(b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that that person has or is likely to have has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision -
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c)..." (Emphasis added)
10 The substantive proceedings which the applicant contends it is entitled to commence are proceedings under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct in relation to misrepresenting the nature and consequences of a proposed large scale development project by Kirella Pty Ltd ("Kirella") at North Strathfield. It is claimed by counsel for the applicant that the evidence is sufficient to indicate a conspiracy to injure the applicants financially in that it was undertaken as part of a calculated strategy to block or delay the proposed development. These allegations, particularly the latter, are of a serious nature and may call into question the motives and character of persons or entities involved in mounting the opposition.
11 It is apparent that the machinery provided by O 15A is remedial in nature and that it is designed to overcome difficulties faced by parties, who allege they are aggrieved, in identifying parties and reaching a decision as to whether there is sufficient material to support a case against those parties. Accordingly, the legislation should be given a beneficial construction: see Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500; (1990) 20 IPR 79 at 85[1990] FCA 500; , 99 ALR 728 at 733 per Burchett J; Aitken v Neville Jeffress Pidler Pty Ltd [1991] FCA 651; (1991) 33 FCR 418 at 422 per Gummow J and Concrete Constructions Group Pty Ltd v Commonwealth (Sheppard J, 22 April 1996, unreported) at 3. The applicable principles are discussed in those authorities and since there is no contest as to the appropriate principles it is not necessary to repeat them in this judgment. As counsel for the respondents points out determination of the question calls for a close consideration of the particular facts. It is therefore necessary to examine the evidence in some detail to understand the context in which the claimed misrepresentations were made.
12 Objections raised by Hooper and Hooper Communications to the application can be conveniently dealt with in relation to Rules 3 and 6 quoted above. I now turn directly to consider the application of those rules to the circumstances disclosed by the evidence placed before me by the parties.
Order 15A r 3 - Identity discovery
13 For Hooper, Hooper Communications and Katherine Mayson ("Mayson") it is submitted that this rule only applies where an applicant can show that reasonable inquiries have been carried out. It is said that the applicants in the present case have not carried out reasonable inquiries so that the power to award a preliminary discovery in relation to identity has not been activated.
14 It is submitted that in the present case there were readily available avenues of inquiry which the applicant could have taken but did not pursue. In particular, it is said that in relation to one possible respondent disclosed in the material, namely "Westfield", an inquiry should have been made directly to the members or officers of the Westfield group of companies. Such an enquiry would be designed to see whether any person or any entity in the Westfield group had any dealings with any of the named respondents, or whether they were in any way involved in conduct in connection with the making or publication of the alleged false representations or the deceitful course of conduct which the applicants say are the subject of these proceedings.
15 Counsel for the applicants, on the other hand, points out that the possible involvement of one or more members of the Westfield group of companies and other persons only came to light recently after a settlement was reached between the applicants and Mr Jim Photios who is the fourth respondent. Mr Photios has furnished a considerable amount of information and several documents relating to the alleged involvement of Westfield, in connection with the issue and promotion of the misleading material, which is said to implicate one or more of the companies in the Westfield group of companies, and officers, agents and consultants thereof.
16 On 9 December 1999, which was a week prior to the hearing of the application before me, Mr Jim Photios, who had been involved in the distribution of the material, swore an affidavit which has been tendered as an exhibit in these proceedings. He asserts that among other things Ken Hooper, of Hooper Communications told him that:
1. Hooper Communications had been retained by Westfield to stop the large development on the old Arnott's Biscuit Factory Site at North Strathfield, or to change the nature of the development to eliminate its retail component and particularly its cinema complex, to protect Westfield's Burwood shopping centre. Mr Hooper said he was instructed by Mr Bob Jordan, a senior executive of Westfield and that he reported to Mr Jordan.
2. Westfield wanted to encourage and to financially support opposition to the development by local residents without anyone knowing that they were doing so, and Photios was instructed that he should not disclose any connection with Hooper and Westfield.
3. Hooper wanted progress reports from Photios on the status of the proposed development so that Hooper could report back to Mr Bob Jordan of Westfield.
4. Hooper told Photios to "warn" local residents that if the proposal goes ahead it will create enormous traffic problems and terrible drug dealing problems.
5. Hooper told Westfield that Photios was helping him on the project but gave assurances that Photios could be relied on to keep Westfield's name out of all his dealings.
6. Hooper had given Westfield details of the proposed opposition tactics and copies of the "flyers" which contained what the applicant alleges to be misleading statements about the proposal and these had been approved by Westfield. Photios says that he distributed these "flyers" in letterboxes in North Strathfield on several occasions.
7. Hooper told Photios that his solicitor had a "letter of comfort" from the solicitors for Westfield and that Westfield were paying all his legal expenses but that Westfield was not prepared to give a formal deed of indemnity to Photios.
8. Hooper sent bills to Westfield and received bank cheques in the mail drawn on the Reserve Bank of Australia and payable to cash for the amount of each of his bills, and these were sent to him with a Westfield "With Compliments" slip.
9. Hooper said that he asked Mark Ryan at Westfield, who was dealing with the matter together with Bob Jordan, whether Westfield would give him a formal indemnity. Mr Ryan was said by Hooper to be the public relations person for Mr Lowy Junior, the Managing Director of Westfield.
10. Hooper said that Ryan and Jordan told him that Westfield always "looks after its friends but doesn't give formal indemnities".
17 On 15 September 1999 Mr Photios, who was obviously concerned about the consequences of his role in the campaign, wrote to Mr Mark Ryan asking for an indemnity from Westfield Ltd by way of Deed of Indemnity in respect of his exposure resulting from work carried out by him for the benefit of Westfield Ltd, pursuant to instructions which emanated from or were approved by Westfield Ltd, and which were for the benefit of Westfield Ltd. He threatened that in the event of a refusal by Westfield he would seek a Deed of Release from the Jagar Property Group. Jagar is the holding company of Kirella and manages its activities. Kirella is the owner of the subject land.
18 No reply was received from the addressee Mr Ryan, but in a letter dated 23 September 1999 on a letterhead of Westfield Limited, the Company Secretary, Mr Craig van der Laan responded in these terms:
"We refer to your letter dated 15 September 1999 and have no knowledge of you carrying out any work for this Company or any member of this Group. Accordingly, there is no basis for seeking an indemnity.Should you take any action which causes this Company to suffer any loss or damage, appropriate legal proceedings will be instituted against you."
19 After receiving this reply Photios furnished a number of documents to the applicant developer and swore his Affidavit of 9 December 1999, referred to above, setting out details of his dealings with Ken Hooper. Although it refers to "Westfield" this material does not identify any particular entity or person within the Westfield group of companies with whom Mr Hooper was dealing. Also, although several names of persons are mentioned, the identity of the responsible persons and their level of involvement remains uncertain for the purpose of commencing proceedings.
20 The Photios affidavit also recounts the unsuccessful approaches by Photios to a number of local residents to act as spokespersons to head a protest group; they were either unwilling to be enlisted or they were not considered "suitable". As a consequence, Photios says that Hooper told him that he would introduce another "cover", "Sydney Independent Retailers" to make the developer think that there are two different groups against the development, and that they could be linked up later. According to Photios, Hooper told him that Westfield had approved this.
21 There was no cross-examination on the affidavit of Mr Photios, which was not read but was tendered in evidence, although Mr Glew, on behalf of the applicant developer, was cross-examined by counsel for the respondents. Indeed parts of the Photios affidavit were relied on by the respondents in their written submissions. There was no evidence in denial of the statements of Photios. On the limited and uncontroverted material presently before me it appears unlikely that a letter of enquiry or request to Westfield as suggested by counsel for the respondents, would have produced any useful information or admission. The material indicates that Westfield did not wish to be identified as having any association with Hooper's campaign. If the affidavit of Mr Photios is taken at its face value there is a clear indication of a pattern of subterfuge and clandestine conduct involving Hooper and Hooper Communications, from which it appears that Hooper, Hooper Communications and Mayson (a shareholder in Hooper Communications and on the evidence a convenor of one of the action groups) could provide material which would tend to assist in the ascertainment of the identity of those involved.
22 In addition to the above statements attributed to Hooper, Photios says that in May 1998 he met with Hooper who gave him a copy of a Memorandum written by him to a person known as Andrew Whiteside, who was said to be then working for Westfield. A copy of this was said to have been sent to Mr Bob Jordan at Westfield. That Memorandum, dated 9 May 1999, is headed "Hooper Communications" and relevantly reads as follows:
23 " HIGHLY CONFIDENTIAL
Memo: Andrew Whiteside
From: Ken Hooper
cc: Bob Jordan
May 9, 1998.
SUBJECT: Arnott's Site, North Strathfield.
Having re-read the brief and looked at the political connotations involved in the Development Application for the Arnott's site at North Strathfield, I would propose a strategy similar to the one we used at Five Dock.
We have already done some preliminary work, identifying the residents and smaller retailers affected by the development and would also propose to link-up with an existing protest movement operating against a Trigaboff development in nearby Strathfield.
Traffic and cinemas would appear to provide the most effective avenue of protest. We will put the argument that what is proposed is similar to Melbourne's Jam Factory - a high density retail and entertainment area, which has created traffic and youth problems in Melbourne.
We propose to highlight the site's location near new high density residential developments which will be adversely affected by traffic and crowds of teenagers congregating around the cinema-entertainment complex. Nearby parks which are to be improved as part of the plan, will provide a haven for drug dealers who will be drawn to the area by its relative isolation and the crowds of teenagers.
According to Paul Tressider of Jager Property, the new centre will be "drive-to-the-door" retailing - confirming residents suspicions that the centre will generate huge amounts of traffic. No mention has been made of deliveries to the various retail outlets, so we are assuming that large retail outlets and the bulky goods stores will receive deliveries 24-hours a day. We can also point to recent development approvals where the developers have promised that delivery hours will be limited - only to make an application for 24-hour deliveries, once the development is under way (Coles, Caringbah).
This week we will undertake to obtain a Post Office Box, as a contact point for flyer reference for local residents and will issue the first of a series of flyers, designed to establish a legitimate protest group.
At this stage, we propose to use the name Strathfield Action Organisation (S.A.O.) - which should attract some publicity in its own right.
As soon as we have obtained a local spokesperson for the group, we will identify others who can specialise in areas like heritage, environment, park preservation, traffic and drugs. This should produce a series of Press releases for the local media on a variety of subjects.
At this stage, it is proposed to prepare the first Press Release for distribution next Friday - but this will depend on the success in obtaining a local spokesperson. (Local papers include the Glebe and Inner Western Weekly, Glebe and Inner City News, the Inner Western Suburbs Courier and the Metropolitan Advertiser).
Once we have a core group (this week), we will start with telephone calls and letters to local councillors and the Member for Drummoyne, the Speaker in the Legislative Assembly, John Murray. We will also identify and contact the endorsed Liberal candidate for the seat of Drummoyne, as well as any Democrats, Greens or Independents.
We will also obtain a complete list of Concord Councillors and their affiliations, along with private telephone numbers and home addresses - to facilitate a letter-writing campaign.
Our strongest weapon is probably a political one, in that the local Member of Parliament, John Murray, is in a relatively marginal seat. With a State election next year, Mr Murray will have to win a sizeable part of the vote in new apartment complexes near the development site. There could be up to 15000 votes in the Mirvac complex ... all of them potentially opposed to the development. This complex is huge and we suspect most of the apartments would have sold for upwards of $300,000 - hardly traditional Labor voters.
This leverage can also be used on the Mayor of Concord Council, Labor's Peter Woods, who also faces election next year.
There is, of course, a very real danger that because of the size of the project and its proximity to the Olympics' venues at Homebush, that the Minister for Urban Affairs and Planning, Craig Knowles, would be tempted to place a regional development order over the site.
*Westfield should urgently undertake to convince Mr Knowles that such a move would cause a voter backlash in the seat of Drummoyne and could affect Mr Murray's re-election campaign - as well as rebound on Labor candidates at the next council elections.
As discussed earlier, the strategy for this project will be very similar to that used successfully at Five Dock; requiring a high level of local involvement and regular servicing.
....
Ken
HOOPER COMMUNICATIONS 20 Ocean Street, Woollahra. Tel: 9328 7789; Fax: 9328 7732"
(Original emphasis)
24 Also annexed to the affidavit of Mr Photios is a fax cover sheet in these terms which Mr Photios says he received from Mr Hooper on 27 July 1998. The fax cover sheet reads:
"FAX COVER SHEET -----------------------------
Mon, 27 Jul 1998 3:32 PM
To: The Penthouse
Attn: JIM PHOTIOS
Fax: 3 pages and a cover page.
Note: Jimmy: Here's my latest cover. Paul Eldridge is a mate of mine and will buy an untraceable SIM card for Adam to use my old phone. I am sending the Press release out this arvo. I'll give you a ring in a few minutes. Cheers, Ken."
25 The "latest cover" which forms part of the above fax relevantly reads as follows:
Adam:Your cover is simple: You are the CEO of Sports Grips (Australia), a retailer and distributor of sporting goods and equipment. Sports Grips is owned and operated out of Maroubra by Paul Eldridge, a young man who has made a small fortune out of the business and is now moving to expand into computer retailing. As CEO of Sports Grips, you are examaning [sic] ways and means [sic] using the same marketing and distribution techniques for computers, that Paul has used for sporting equipment.
Sports Grips phone number at Maroubra is 9314-3089 and its address is P.O. Box 70, Maroubra South (but you are rarely there, because you're always on the road for distributors. Best number to get you on is your portable. You will have to buy the card - I'll give you the cash - it's about $80.).
Paul has been briefed and if he gets calls, will whinge about pushy developers who want to stifle political debate with stand-over tactics, and tell them to piss off.
Our campaign will consist of Newsletters and approaches to the Government through the former Chief of Staff to the Premier, Mr Hooper. Our first successful campaign was in Granville where we defeated moves by Woolworths to develop a giant supermarket complex on Industrial Land. This was overturned by the Minister for Urban Affairs, Mr Craig Knowles, on the grounds that it would upset the retail hierarchy in nesarby [sic] Guildford, South Granville, Auburn and Merrylands.
Whiule [sic]Mr Hooper was not involved in this campaign, we learned about him from one of Mr Knowles staffers and contacted him some months ago. He will act as our lobbyist.
We are trying to talk to members of the North Strathfield Residents Association, which seems to be headed up by a Mrs Goodridge and a Mr Photios. We haven't managed to make contact with them yet, but would hope to be able to join with them - if they will have us.
We make no apologies for making this a political campaign and will be pointing out to the Government that North Strathfield is in the seat of Drummoyne - marginally held by Labor's John Murray, the Speaker in the Legislative Assembly.
...
The Sydney Independent Retailers (SIR) group will fight the proposed development of the old Arnotts' factory site at North Strathfield as a huge retail and cinema complex.
The Co-ordinator of SIR, Mr Adam Pooley, said last night the organisation was determined to fight any development which sought to replace industrial land with retail shopping complexes.
`Developers must not be allowed to upset the hierarchy which has been established throughout Sydney over the last one hundred years. Years of planning went into dividing Sydney into retail, industrial and housing zones. The development of huge shopping complexes within the existing retail hierarchy has already wiped out thousands of small businesses and corner stores.
`Now all sorts of developers want to turn industrial land into retails space, further threatening the independence and livelihood of small businesses throughout Sydney.
....
The Minister for Planning, Mr Knowles, last year supported SIR's campaign against the destruction of existing small businesses by over-ruling proposals to develop industrial land at Granville as a giant shopping centre.
He found the development on industrial land, where retail was never foreseen, was a threat to local businesses in three neighboring [sic] suburbs and over-turned Paramatta [sic] Counsel's re-zoning of the site.
SIR has engaged the Sydney lobbyist, Mr Ken Hooper, to take its objections to the State Government.
For further information Contact: Ken Hooper, Hooper Communications
Tel 9328-7789; 0418-607687."
26 On 30 August 1998 Mr Photios says that he received a fax from Mr Hooper which concerns "lobbying activities" in a number of areas including Parklea, Hornsby and Bondi. as well as for the subject Arnott's site, and which relevantly reads:
"Memo Jim:Ex: Ken
SUBJECT: Lots more work. August 30.
Things are warming up on a couple of fronts and I suggest we meet tomorrow night to discuss the following (I could call in on my way home from Foxtel).
* Arnotts. I am currently finishing the SIR (Sydney Independent Retailers) flyer and a Press release which I will fax out to the Inner Western Courier on Thursday or Friday. (Attached is the first PR write up which was published last week and prompted calls from the Member for Drummoyne, John Murray and Jaegar[sic]).
I have not been able to get the flyer out and did not want you to distribute it, for fear of getting caught doubling up. However, time is getting away on me and I figure that you'll be in different areas anyway. It is also feasible that I contacted you through the Resident Action Group and got you to distribute the flyers because you know the area.
What I want to cover at this stage are the strip shops (and the pub) on Parramatta road, plus any other local "small" stores or centres like Major's Bay complex, which is referred to in an enclosed clipping. There are small shopping complexes just off Parramatta Road, east and west of the railway line. I suspect we have ignored the eastern side of the line (beyond those few strip shops) and we really don't know where the small centres are. It might be time for a drive around to identify them. We could start with Major's Bay, because it has an existing protest group (See cutting).
The flyer will promote our protest and will be followed up with a Full-Page advert in the middle of September. What we are looking for are centres like Major's Bay which can organise their own protest (to be combined later with ours). We will supply petitions, flyers ... anything that doesn't cost too much.
We must keep an eye on the council, because I think they are trying to lull us into a false sense of security. If the Traffic Plan takes two months to complete, they've got no hope of getting approval this year ... and then it would be taken to almost the State election before final approval could be given. Jaegar [sic] won't want that. I will get the various political affiliations and will write letters to the Minister for Planning, Knowles, and Murray urging them to kill the process now and earmark the site for medium density housing.
At the same time, I will warn both Labor and Liberal that we would be prepared to run an independent candidate if we don't get unanimous opposition for both sides. (Only 1000 votes would be enough to change the representation via preferences.).
We will aim for a SIR flyer this week (with political responsibility publicly accepted by me) and in a fortnight's time. The second flyer will include a petition form. I propose to suspend Resident Action flyers until after October 3 (for obvious reasons).
* Parklea
Now here's a good little money spinner. We were responsible a few years ago for defeating the proposals of market owner, Con Constantine (guess who's Greek) to have the whole thing zoned retail, so that he could flog it all to Woolworths for a giant retail complex. Constantine even successfully stood for Blacktown council; stacked the local Chamber of Commerce and tried to coerce Councillors in his previous attempt at re-zoning.
So far, he has not even lodged an application, but the word is that he will apply for extended trading hours - as a first step.
Our job is to get some background; check out the Chamber of Commerce and get the current political affiliations of councillors. I will check the local Labor Party because there's a huge shit fight out there over who will get the endorsement for the local seat.
Tomorrow (Mon) I will speak with John Perry, a guy who used to work with me on the Telegraph and who now works with one of the Blacktown papers (I can't remember which one) but I'll check it out because Constantine owns one of them and his family hold all the reporters' and photographers' positions. Hopefully, Perry will be able to see you during the week - maybe at Blacktown Workers Club (now there's an experience in store). Once you know the lie of the land from Perry, it will be a matter of footslogging the mall area to see what the locals know. When I find the file, I'll give you the name of some people in the Blacktown Shopping Plaza, which is owned by the Queensland Investment Corporation (who will be splitting half our bill with you-know-who)
* Hornsby
We have some problems in that some retailers (1 or 2) are getting shirty about closing the road to make way for the half-link proposal to join the two centres. I'm told that Claude Fay is opposing the closure, but it seems unlikely because he would benefit from it. I will talk to Lyn Fay (John Davis' Lynne) who introduced me to Claude when I helped him keep his commercial fishing licence on Lord Howe.
What I need you to do is talk to Abelsohn and Hill - see if we need a flyer or a petition to support the closure. (They may think it best to approach it via the council; that's OK). We need to find out where the objections are coming from and then work out ways of countering them. You are cleared to make a couple of trips a week, if that's what's needed to get answers and results.
* Bondi
Our client wants the local Govt boundaries changed so that the junction is included in Woollahra. We need to talk about this, after I have met them on Friday (and before I go away on Sunday)."
O 15A r 3 - Indemnity Discovery
27 On the above material, in my opinion, it is apparent that Mr Hooper is likely to have knowledge of facts and perhaps have documents or records that could tend to assist in the ascertainment of the identity of respondents in the substantive proceedings.
28 A further submission advanced by the respondents on the question of preliminary identity discovery was that the information already gathered was sufficient for the purpose of commencing proceedings against several of the persons mentioned and that there was no need for more material. I am not persuaded that the mention of several names in the conversations and the documents referred to affords a sufficient basis for identifying any particular respondent so as to warrant commencement of proceedings. One purpose of the rules under O 15A is to ensure expeditious and economic prosecution of proceedings and to remove the need to adopt a "scatter gun" approach to proceedings by suing everyone in sight. The waste and disturbance caused by such an approach is an obvious mischief at which the rule was directed. In the present case, it is appropriate to allow preliminary discovery in order to determine, for example, which officers or corporate entities within or outside the Westfield group (if any) are involved in the conduct complained of.
29 The extent of the uncertainty surrounding the identity of the appropriate respondents is shown further by the following exchanges in the cross-examination of Mr Glew by counsel for the respondents:
Mr Walker SC: From the information given to you by Mr Photios, a connection with Westfield Limited has been suggested, is that right?Mr Glew: Yes, and denied by Mr Hooper.
Mr Walker SC: Mr Hooper's denial is something that, what, prevents you from suing Westfield Limited, is that right?
Mr Glew: No, it completes the picture that there are other potential parties involved. Mr Photios is saying ---
Mr Walker SC: You mean apart from Westfield?
Mr Glew: Yes.
Mr Walker SC: So Mr Hooper's denial doesn't deter you from your belief about Westfield's involvement, is that right?
Mr Glew: I believe they're potentially one of the parties. I think we could be led up the wrong track however.
Mr Walker SC: Mr Hooper's denial doesn't put you off suing Westfield if you're minded to sue them at all, is that right?
Mr Glew: Oh it does, yes.
Mr Walker SC: It does put you off suing Westfield?
Mr Glew: Yes, that's why we're not suing them at the moment. It is quite possible that Mr Photios has actually given us deliberately the wrong time. There's been a lot of deceit going on in this particular matter. I'm not necessarily believing what Mr Photios has put in his affidavit.
Mr Walker SC: Before you would consider yourself able to sue, that is to make allegations with the privilege that allegations attract in court, before you regard yourself as able to sue Westfield you'd want something more than Mr Photios' affidavit, is that what you're saying?
Mr Glew: I'm saying, yes, I'd like to find - I'd like to find our [sic] who the parties are that's involved. We think that Westfield Limited is one of those potential parties and Mr Photios's affidavit certainly supports that.
...
Mr Walker SC: What you seek is for Mr Hooper to go on oath, is that correct?
Mr Glew: I believe Mr Hooper's been the one in direct contact with whoever the client is.
Mr Walker SC: And you say you would regard that as sufficient for your purposes to have him on oath, do you?
Mr Glew: I would presume so, yes.
Mr Walker SC: What is the difference between Mr Photios on oath and Mr Hooper on oath?
Mr Glew: Because Mr Photios doesn't claim to have had any direct relationship with the party concerned. He could well be being misled by Mr Hooper. He could also simply have the wrong name. I mean he's talking about Westfield Limited. It might be Westfield Trust and abased on evidence that we've or discussions we've had with political people in the last two weeks, it could well be Frank Lowey [sic]."
30 Order 15A rule 3 does not mandate a standard of exhaustive perfection in relation to inquiries. While it envisages that reasonable inquiries have been made it does not require that every possible path of investigation should be fully explored. The bench mark is reasonableness
31 The evidence of Mr Glew and Mr Tressider, filed by the applicants, combined with the information and documents provided by Mr Photios and tendered in evidence, satisfies me that reasonable efforts and inquiries have been made over the past several years to ascertain the identity of possible respondents. Apart from identifying the present respondents to these proceedings, they have been without much success. I am also satisfied that Mr Hooper and his company, including Mayson, are likely to have the requisite knowledge and information to come within O 15A r 3 and that an order for preliminary discovery should be made under this rule.
32 I now turn to the question of information discovery under O 15A r 6.
O15A r 6 - information
33 Having identified prospective respondents in the present case it would then be necessary to consider the nature and extent of the involvement of those persons or entities (if any) in connection with the conduct complained of.
34 For the respondents it is submitted that the applicants already have sufficient information to decide whether to commence a proceeding. It is said for example that there is already sufficient material to make a decision whether to sue Hooper, Hooper Communications and Mayson. There was also some indication that a Mr Adam Pooley may be involved.
35 This submission is not accepted. While there may be some basis for deciding to proceed against the above persons, the applicant is not precluded by r 6 from seeking further information to investigate the full ramifications of the conduct in order to decide the nature of the claims which can be brought and whether they should be brought. The applicant is also entitled to have sufficient information to decide whether it has the right to obtain relief against additional persons or entities who may be involved, particularly where there is some indication of a concerted course of conduct among a number of persons and entities over a period of months, as in the instant case. In relation for example, to the persons named in the evidence of Mr Photios, it should be borne in mind that having regard to the gravity of the allegations, it is appropriate to seek further information to see whether there is sufficient evidence to decide if it has a right to obtain relief such that a case should be brought against any particular member of members of the Westfield group or any of the officers, employees, agents or consultants of Westfield entities. The evidence of Mr Photios indicates that there may be in existence documents or records from Westfield in the possession of Hooper or Hooper Communications. For example, records of bank cheques or records of bills sent by Hooper to Westfield, and Westfield "With Compliments" slips referred to by Hooper. This information may tend to establish how much, when and how moneys (if any) were paid and by and to whom they were paid. In addition there may be other supporting correspondence, documents or other records such as receipts or memoranda, notes of telephone conversations or e-mail records in relation to these with respect to the alleged payments.
36 The respondents further submit that the discovery contemplated by r 6 is limited to documents necessary to assist a decision whether the applicants have the right to relief. This is clearly correct because r 6(c) so provides. In view of this it is submitted that no specific documents or classes of documents have been identified in respect of which the applicant needs access. In my view, bearing in mind the preliminary nature of the application, the order sought is sufficiently specific. The order refers to documents relating to the question whether the applicant has the right to obtain the relief sought and the order refers to the affidavits filed in respect of the application. When the affidavits originally filed are read together with the evidence of Mr Photios, there is a sufficient description of the type of documents required for the purposes of preliminary discovery.
37 Finally, it is submitted that, because damages may be the only appropriate remedy, discovery cannot be justified on the ground that it is necessary to formulate the terms of any injunctive relief. I cannot agree. It is by no means apparent to me that some form of injunctive or other relief, apart from or in addition to damages, may not be appropriate. Moreover, any documents discovered in my view, may assist the formulation of the applicant's case against the respondents and may throw light on the nature and extent of the misrepresentations and deceitful conduct complained of. That in itself is a useful purpose within the intent of r 6.
38 I am therefore satisfied that the applicant has made out a case under both rules 3 and 6 of O 15A for preliminary discovery. I direct the applicants to bring in Short Minutes of proposed Orders to give effect to these reasons. Since the applicant has succeeded on this application I consider that the first, second and third respondents should pay the costs of the applicant incurred in relation to the determination of the question whether preliminary discovery should be ordered.
39
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. |
Associate:
Dated: 23 December 1999
Counsel for the Applicant: |
D J Hammerschlag R I Bellamy |
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Solicitor for the Applicant: |
Horowitz and Bilinsky |
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Counsel for the Respondent: |
B Walker SC J Stoljar |
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Solicitor for the Respondent: |
Bush Burke |
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Date of Hearing: |
15 December 1999 |
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Date of Judgment: |
23 December 1999 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1999/1839.html