FEDERAL COURT OF AUSTRALIA

Waterproofing Technologies Pty Ltd v Perri [2022] FCA 714

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants have leave to file a Further Amended Originating Process in the form Annexure A to the interlocutory application dated 19 April 2022.

2.    The Applicants have leave to file an Amended Statement of Claim in the form of Annexure B to the interlocutory application dated 19 April 2022.

3.    The following parties be joined as respondents to this proceeding:

(a)    Sue-Ann Perri as the Eighth Respondent;

(b)    Ben Ilic as the Ninth Respondent;

(c)    ITank Solutions Pty Ltd as the Tenth Respondent;

(d)    CCBM Super Pty Ltd as the Eleventh Respondent; and

(e)    Joshua Bruzzese as the Twelfth Respondent,

(collectively “New Respondents”).

4.    Service on the Ninth Respondent is dispensed with.

5.    By 15 June 2022, the Applicants serve the Further Amended Originating Process, Amended Statement of Claim on the New Respondents and this order.

6.    The Applicants and First to Seventh Respondents forthwith provide to the New Respondents, upon written request, copies of:

(a)    the discovery provided to date; and

(b)    Exhibit A1 being tendered in Court on 6 June 2022.

7.    By 18 June 2022, the Ninth Respondent shall issue any request for further and better particulars of the Amended Statement of Claim.

8.    By 4 pm on 18 July 2022, the Respondents file and serve a Defence to the Amended Statement of Claim.

9.    By 4 pm on 1 August 2022, the Applicants file and serve any Reply.

10.    The Independent Computer Expert be permitted to search all devices (or electronic copies) obtained in accordance with the search orders executed on 7 July 2021 (Search Orders) to identify any document/information falling within the scope of Annexure C to the interlocutory application dated 19 April 2022 (Varied Permitted Searches), following completion of which the Independent Computer Expert will prepare and provide to the respondents a list of documents/information identified in accordance with the Varied Permitted Searches identifying the identity, kind, ownership and location details of all documents/information (Second Schedule of Listed Things).

11.    Within 10 business days of receipt by the Respondents of the Second Schedule of Listed Things, the Respondents are to:

(a)    identify any documents/information contained in the Second Schedule of Listed Things potentially the subject of any claim for privilege; and

(b)    in respect of any such documents/information identified in accordance with Order 11(a) above, the respondents and their respective legal representatives will be permitted access by the Independent Computer Expert to copies of those documents/information for the purposes of them reviewing and identifying any information/documents in respect of which any respondent may wish to make a claim for legal professional privilege, or privilege against self-incrimination, or any other privilege on which any respondent may intend to rely.

12.    Within 10 business days of receipt by the Respondents of the Second Schedule of Listed Things, any Respondent who objects, on the grounds of privilege, to access by any of the Applicants to any document/information identified in the Scheduled of List Things is to:

(a)    prepare an affidavit setting out, with reference to each document, the grounds of objection (Privilege Objection Affidavit) and deliver it to the Court in a sealed envelope; and

(b)    file and serve on each other party a separate affidavit setting out the basis of the objections and any written submissions any respondent intends to rely upon in support of its objections, including identifying in that separate affidavit (without limitation):

(i)    the date of each document;

(ii)    the parties to each document to the extent it is a communication;

(iii)    the substance of the document/communication; and

(iv)    the basis upon which the document/communication is said to attract legal professional privilege;

(v)    any facts upon which any respondent relies to found the claim for privilege;

(Privileged Documents).

13.    The Privilege Objection Affidavit must not be opened except as directed by the Court.

14.    Determination of any privilege objections be determined by a Registrar of the Court.

15.    By 4 July 2022, the Respondents (including the New Respondents) provide discovery of the documents described in the Annexure to the Amended Interlocutory Process.

16.    By 4 July 2022, the Applicants provide further and better particulars of:

(a)    their loss and damage as pleaded at paragraphs 38, 41, 44, 47, 51, 54, 57, 61, 106, 107 and 108 in the Amended Statement of Claim;

(b)    breach of duty of the Respondents in respect of the period from 1 July 2018 to 6 July 2021;

(c)    the Ninth Respondent’s request for further and better particulars.

17.    By 4 July 2022, the Applicants provide standard discovery of documents in relation to loss their loss and damage as pleaded at paragraph 38, 41, 44, 47, 51, 54, 57, 61, 106, 107 and 108 in the Amended Statement of Claim by 4 July 2022.

18.    The Notices to Produce dated 17 January 2022 served upon the First, Second and Third Respondents respectively, be set aside.

19.    By 30 November 2022, the parties attend a mediation, in person, before a Registrar of the Court.

20.    The proceeding be listed for a case management hearing at 2.15pm on 15 December 2022.

21.    Reserve all questions of costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

ANDERSON J:

INTRODUCTION

1    By Amended Interlocutory Application dated 16 May 2022, the First, Second and Third Respondents seek:

(a)    an order discharging the freezing orders made on 21 July 2021 by Justice Thawley and in lieu thereof offer the undertaking set out below;

(b)    orders for further and better particulars of the Applicants’ loss and damage pleaded at paragraphs 38, 41, 44, 47, 51, 54, 57, 61, 106, 107 and 108 of the Statement of Claim filed on 6 July 2021;

(c)    discovery of documents in relation to the loss and damage as pleaded in the abovementioned paragraphs; and

(d)    orders that the Notices to Produce dated 17 January 2022 be set aside as an abuse of process.

2    By Interlocutory Application filed on 23 May 2022, the Sixth and Seventh Respondents seek a discharge or variation of the freezing orders made by Justice Thawley on 21 July 2021.

3    The Ninth Respondent, by way of oral submissions, seeks to oppose being joined as a Respondent to these proceedings and opposes leave being granted to the Applicants to file and serve the Amended Statement of Claim.

4    The Applicants seek the continuation of the freezing orders and otherwise oppose the orders sought in the First, Second and Third Respondents’ Amended Interlocutory Application and the Sixth and Seventh Respondents’ Interlocutory Application.

5    The Applicants also seek leave to amend their Statement of Claim in order to expand the temporal period of wrongdoing (which was initially from 1 July 2018 to 6 July 2021) to encompass the period from 1 July 2012 to 30 July 2018.

LEAVE TO AMEND

6    Three grounds are relied upon by the First, Second and Third Respondents to oppose leave to file the Amended Statement of Claim. These grounds are:

(a)    The need for particulars under rule 16.41 of the Federal Court Rules 2011 (Cth) (Rules);

(b)    Futility; and

(c)    Prejudice, embarrassment and delay.

7    Leave to file an Amended Statement of Claim should only be refused in a plain and obvious case. These principles are summarised by Beaumont J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 236:

… Under the modern system of pleading, on an application to strike out a statement of claim as disclosing no cause of action, the question is whether “it would be open to the (applicants) upon the pleadings to prove facts at the trial which would constitute a cause of action”: see Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 631; [1971] ALR 235 at 237. The main general principles in strike out applications have been summarised as follows:

(1) A “reasonable cause of action” means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out (Davey v Bentinck ([1893] 1 QB 185)).

(2) The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action (cf Wenlock v Moloney ([1965] 1 WLR 1238; [1965] 2 All ER 871)).

(3) Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect (cf Hodson v Pare ([1899] 1 QB 455)).

(4) It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised.

(5) Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point (cf Williams and Humbert Ltd v W & H Trade Marks ([1986] AC 368; [1986] 1 All ER 129)).

8    This decision has been cited with approval by the Full Court in Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at [50] per French J, with Beaumont J agreeing at [1] and Finkelstein J agreeing at [99].

9    Contemporary case management principles are such that the Court should only refuse to grant leave to file an Amended Statement of Claim if it would significantly impact upon the proper preparation of the case: see, e.g. Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [6] – [8], cited with approval in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 (Thomson). Modern courts do not take an unduly technical or restrictive approach to amending a statement of claim, however that does not detract from the requirement that statements of claim must serve their essential function. As the Full Court stated in Thomson at [13]:

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham (1982) 148 CLR 658 (at 664–665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 (at 517) …

10    In a case arguably such as the present, where there has been wrongdoing sufficient to found a cause of action depends upon an assessment of conduct considered within its full context, which may extend back many years.

11    The use of the terms “diversion of business”, “benefits”, “profits”, “advantages”, and “opportunities” directly calls in aid the principles stated by the High Court in Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 (Foresters). The Applicants have deployed the use of these terms in the Amended Statement of Claim. I see no relevant criticism of the Applicants deploying such terminology, which is well understood. The amendments proposed to be made to the Statement of Claim expand the temporal period of wrongdoing, which was originally from 1 July 2018 to 6 July 2021; to 1 July 2012 to 30 July 2018.

12    The Applicants allege that the primary wrongdoers were:

(a)    the First Respondent, Luigi Perri (Luigi Perri) from 1 July 2012 to 30 June 2021;

(b)    the Ninth Respondent, Ben Ilic (Ben Ilic) from 1 July 2012 to 30 June 2021;

(c)    the Fourth Respondent, Vince Bruzzese (Vince Bruzzese); from 1 March 2015 - the Amended Statement of Claim pleads 27 October 2015, but Vince Bruzzese admits he was employed by Envirosystems from 1 March 2015; and

(d)    the Eighth Respondent, Sue-Ann Perri (Sue-Ann Perri) from 1 February 2019.

13    The Applicants allege that the secondary wrongdoers that induced or procured a breach of fiduciary duty under the second limb of Barnes v Addy (see Barnes v Addy (1874) LR 9 Ch App 244) and breached ss 181(2) and 183(2) of the Corporations Act 2001 (Cth) were:

(a)    Luigi Perri (and his alter ego companies);

(i)    from 1 July 2012 in respect of Ben Ilic’s wrongful conduct;

(ii)    from 1 March 2015 in respect of Vince Bruzzese’s wrongful conduct.

(b)    Ben Ilic (and his alter ego companies):

(i)    from 1 July 2012 in respect of Luigi Perri’s wrongful conduct;

(ii)    from 1 March 2015 in respect of Vince Bruzzese’s wrongful conduct.

(c)    Vince Bruzzese (and his alter ego companies):

(i)    from 1 March 2015 in respect of Luigi Perri’s wrongful conduct;

(ii)    from 1 March 2015 in respect of Ben Ilic’s wrongful conduct.

(d)    Sue-Ann Perri (and her alter ego companies):

(i)    from 1 July 2012 in respect of Luigi Perri’s wrongful conduct;

(ii)    from 1 July 2012 in respect of Ben Ilic’s wrongful conduct;

(iii)    from 1 March 2015 in respect of Vince Bruzzese’s wrongful conduct.

(e)    The Twelfth Respondent Joshua Bruzzese (Joshua):

(i)    from 1 July 2017 in respect of Luigi Perri’s wrongful conduct;

(ii)    from 1 July 2017 in respect of Ben Ilic’s wrongful conduct;

(iii)    from 1 July 2017 in respect of Vince Bruzzese’s wrongful conduct.

(f)    The Sixth Respondent, Angelo di Berardino (Angelo); (and his alter ego companies):

(i)    from 1 July 2019 in respect of Luigi Perri’s wrongful conduct;

(ii)    from 1 July 2019 in respect of Ben Ilic’s wrongful conduct;

(iii)    from 1 July 2019 in respect of Vince Bruzzese’s wrongful conduct.

14    I am satisfied, on the basis of the affidavit material relied upon by the Applicants in this application, together with the tender bundle, exhibit A-1, that there is a reasonable basis to infer that the Respondents, or some of them, have been engaged in the alleged wrongdoing from as early as 1 July 2012 through to 30 June 2018.

15    In doing so, I will also allow the Ninth to Twelfth Respondents to be joined to this proceeding.

PARTICULARS OF WRONGDOING FROM 1 JULY 2012 TO 30 JUNE 2018

16    As to the wrongdoing of the Respondents in the period from 1 July 2012 to 30 June 2018, I agree with the Applicants’ submission that any order for particulars should abide by the Independent Computer Expert providing a list to the Applicants of the emails relevant to that period, and the Applicants’ review of those emails, at which time further and better particulars of the wrongdoing of the Respondents can be provided in respect of the period from 1 July 2012 to 30 June 2018.

PARAGRAPH 16(C)

17    The complaint made by the First to Third Respondents is that “[t]here is no particularisation of the alleged ‘diversion of business’, ‘benefits, ‘profits’, ‘advantages’ and ‘opportunities’”.

18    I am satisfied that the evidence arguably discloses that in the course of their work for the Applicants, (the First Applicant, Waterproofing Technologies Pty Ltd (Envirosystems) and the Second Applicant, Polyseal Victoria Pty Ltd (Polyseal Victoria)), Luigi Perri, Ben Ilic, Vince Bruzzese and Sue-Ann Perri acted in breach of the duties of good faith, and fidelity, that each owed to Envirosystems and/or Polyseal Victoria.

19    The function of pleadings is to afford procedural fairness by putting a party on notice of the case made against them. The Respondents are clearly on notice of the case made against them.

20    Paragraph [16(c)] is more than adequate to put the Applicants on notice of the case made against them, and causes no prejudice to the Respondents.

21    The First to Third Respondents’ submission directed to paragraph [16(c)] of the Amended Statement of Claim is rejected.

PARAGRAPH 30

22    The First to Third Respondents make the same complaint in respect of paragraph [30] of the Amended Statement of Claim as that directed to paragraph [16(c)].

23    For the same reasons given, in respect of paragraph [16(c)], the complaint made by the Applicants, in respect of paragraph 30, must also be rejected.

PARAGRAPH 31A

24    The Applicants allege that in the period from 1 July 2012 to 30 July 2018, Sue-Ann Perri was:

(a)    A shareholder of the following companies:

(i)    CCBM Bare Pty Ltd;

(ii)    CCBM Super Pty Ltd;

(iii)    ITank Solutions Pty Ltd; and

(iv)    QV Projects Pty Ltd.

(b)    A director of the following companies:

(i)    CCBM Bare Pty Ltd; and

(ii)    CCBM Super Pty Ltd.

25    The Applicants allege that in the period from March 2019, Sue-Ann Perri was an employee of Polyseal Victoria.

26    The Applicants allege that in the period from 1 July 2012 to 30 July 2018, Sue-Ann Perri was a “secondary” wrongdoer.

27    It is incorrect for the First to Third Respondents to submit that “nowhere is there a claim by Waterproofing Technologies against Sue-Ann Perri yet in the pleadings for damages”.

28    Such a claim is pleaded against Sue-Ann Perri: see Amended Statement of Claim at [31A] and [107].

29    The criticisms made by the First to Third Respondents, of the claims made against Sue-Ann Perri, ignore the fact that Sue-Ann Perri was a shareholder of companies which were incorporated as follows:

(a)    CCBM Bare Pty Ltd on 15 March 2013;

(b)    CCBM Super Pty Ltd on 2 August 2012;

(c)    ITank Solutions Pty Ltd on 19 March 2013; and

(d)    V Projects Pty Ltd on 25 February 2013.

PARAGRAPH 106

30    The First to Third Respondents make four complaints directed at paragraph [106] of the Amended Statement of Claim:

(a)    further particulars should be provided – (I have ordered that the Applicants provide further and better particulars of paragraph [106]);

(b)    some of the Respondents did not exist in 2013;

(c)    loss of revenue is not a relevant head of damage; and

(d)    lack of particularisation of the alleged “diversion of business opportunities”, “benefits”, “profits”, “advantages”, and “diversion of prospective customers”.

31    As to the second point, it is obvious that the reference to “2013 and continuing” is a reference to the conduct of each of the Respondents either as:

(a)    a “primary” wrongdoer as described in paragraphs [47] of the Amended Statement of Claim; or

(b)    a “secondary” wrongdoer as described in paragraphs [48] of the Amended Statement of Claim.

32    As to the third point, an account of profit can include any “benefit, “advantage”, “profit”, etc., and is not limited to profits in the narrow accounting sense, as per the submissions based on Foresters’ case.

33    As to the fourth point, this submission is the same as the point made by the First to Third Respondents directed to paragraphs [16(c)] and [30] of the Amended Statement of Claim, which should be rejected based on the analysis of an account of profits in Foresters’ case.

PARAGRAPHS [107], [108], [109], [111], [112], [112A], [113], [114]

34    The First to Third Respondents make the same complaints in respect of paragraphs [107], [108], [109], [111], [112], [112A], [113], [114] above as those directed to paragraph [106] of the Amended Statement of Claim.

35    I reject those complaints for the reasons previously given above in respect of paragraphs [16(c)] and [30].

PARAGRAPH [110]

36    The First to Third Respondents submit that “this pleading [paragraph 110] concerns profits made by Aqua Coatings, but Aqua Coatings no longer exists”. I reject the First to Third Respondents submission on this point as it is misconceived.

37    The Applicants claim damages, equitable compensation, and account of profits, against the Respondents in respect of the diversion of business opportunities, benefits, advantages, and profit, to Aqua Coatings.

38    It matters not that Luigi Perri and Angelo di Berardino saw fit to deregister Aqua Coatings.

39    The Respondents can be held liable for the “profits” made by Aqua Coatings, to the extent that there is a relevant causal connection between their wrongdoing, and the damage suffered by the Applicants as a result of diversion of business to Aqua Coatings, or alternatively, by reference to the “profits”, including benefits or advantages, obtained by the Respondents causally related to the business wrongfully diverted to Aqua Coatings.

40    Finally, in respect of Sue-Ann Perri, the First to Third Respondents submit that “there is no basis in the evidence of the applicants to support the contention that the alleged improper conduct of the First to Third Respondents (and Sue-Ann Perri) occurred prior to 2018”.

41    The First to Third Respondents’ submission on this point are misconceived.

42    At the time the Search Orders were made, the Applicants limited the scope of the Search Orders to the period from 1 July 2018 to 30 June 2021. Following inspection of the documents obtained from the Search Orders, the evidence arguably demonstrates that Ben Ilic, a General Manager with Polyseal Victoria, and an employee of Polyseal Victoria was, in effect, Luigi Perri’s right hand man in perpetuating the diversion of business away from the Applicants to:

(a)    Aqua Coatings; and

(b)    Remedial Waterproofing.

43    Further the evidence arguably demonstrates that the wrongdoing of Luigi Perri, Vince Bruzzese, Ben Ilic and Angelo di Berardino, extended back in time before 1 July 2018, and some years before the incorporation of each of Aqua Coatings and Remedial Waterproofing on 26 June 2019, which demonstrate that the following individuals/companies were engaged in the wrongdoing before 1 July 2018:

(a)    Millenium Homes, registered with ASIC on 29 March 2001, and controlled by Luigi Perri and Sue-Ann Perri; and

(b)    ITank Solutions, a company registered with ASIC on 19 March 2013, and controlled by Luigi Perri and Ben Ilic.

44    I accept the Applicants’ submission that due to the limited temporal reach of the Search Orders to the period from 1 July 2018 to 30 June 2021, the Applicants are not able to unlock the business records of the Respondents in the earlier period from 1 July 2012 to 30 June 2018 to prove their wrongdoing in that earlier period.

45    I am satisfied, on the evidence, that there is a reasonable basis for the belief that those records will arguably demonstrate wrongdoing on the part of the Respondents in the period from 1 July 2012 to 30 June 2018, where:

(a)    Ben Ilic had worked for Polyseal Victoria since 2009;

(b)    Luigi Perri had worked for Polyseal Victoria since 2010;

(c)    ITank Solutions Pty Limited, a company controlled by Luigi Perri and Ben Ilic, was incorporated on 19 March 2013;

(d)    CCBM Bare, a company controlled by Luigi Perri and Sue-Ann Perri, was incorporated on 15 March 2013;

(e)    CCBM Super, a company controlled by Luigi Perri and Sue-Ann Perri was incorporated on 2 August 2012;

(f)    the Edwardes Street Warehouse had been used as a business address for the following entities since its purchase on 27 October 2015:

(i)    CCBM Bare since 27 October 2015;

(ii)    CCBM Super sine 27 October 2015;

(iii)    ITank solutions since 27 October 2015;

(iv)    Aqua Coatings since 26 June 2019;

(v)    Remedial Waterproofing since 26 June 2019.

46    For the reasons given, I reject the First to Third Respondents’ submission that the amendments are futile and liable to be struck out. That is why I granted the Applicants leave to amend their Statement of Claim.

47    For the same reasons, I have made orders expanding the temporal limit for the Search Orders.

PARTICULARS

48    I ordered that the Applicants provide further and better particulars of their loss and damage, as it is appropriate that the Respondents know the quantum of the claim made against them, in circumstances where I have directed that a mediation be conducted by a Registrar of the Court before 30 November 2022.

DISCOVERY

49    For the same reasons, it is appropriate that the Applicants provide discovery in relation to their loss and damage.

NOTICES TO PRODUCE

50    I propose to set aside the Notices to Produce dated 17 January 2022, and served upon the First, Second and Third Respondents, on the grounds that they are an abuse of process.

51    I am satisfied on the evidence that the Notices to Produce are being utilised by the Applicants to circumvent the usual discovery process.

52    In Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 3) (BHP) at [6], Collier J identified the following principles as relevant to setting aside a notice to produce:

(3) A Notice to Produce cannot be used as an alternative to an application for discovery or for further and better discovery.

…

(5) A Notice to Produce cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case.

53    Having considered the Notices to Produce, I find that the documents requested therein, are no more than a fishing exercise, as identified by Collier J in BHP, and should be set aside.

FREEZING ORDERS

54    I have decided to refuse to discharge or vary the freezing orders made by Thawley J on 21 July 2021.

55    A freezing order is an interlocutory order made to prevent the frustration of a Court’s process.

56    The elements to establish relief for a freezing order are:

(a)    first, a good or reasonably arguable case;

(b)    secondly, a risk of dissipation of assets; and

(c)    thirdly, the balance of convenience favours the grant of the order.

57    A good arguable case is one which is “more than barely capable of serious argument, and yet not necessarily one the judge considers would have more than a fifty percent change of success”.

58    The criterion of a good arguable case is a lesser standard than a prima facie cause of action.

59    The risk of dissipation of assets to avoid a judgment may be established by inference when, for example, there is a strong prima facie case of serious dishonesty against the respondent from which it can reasonably be inferred that the respondent is the sort of person who would, unless restrained, not preserve his or her assets intact so that they might be available to a judgment creditor.

60    The principles relevant to an application of this nature were conveniently summarised by Young J in Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA652; 152 IR 352 (Paras) in the following terms at [4] to [5]:

The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules, the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (‘Dudzinski’) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25]. Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508.

The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court’s discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 (‘Brown’) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (‘Baker’); and Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 All ER 745 (‘Chanel’) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) (1993) [1993] HCA 6; 176 CLR 300 (‘Autodesk’) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J.

61    The principles identified by Young J in Paras, that the power to vary or discharge an interlocutory injunction is discretionary and ordinarily only exercised in exceptional circumstances, have been applied on a number of occasions in the context of freezing orders.

62    I am satisfied that there is a good arguable case against each of the Respondents and that no exceptional circumstances exist on the evidence filed by the Respondents which would warrant the exercise of my discretion to discharge or vary the freezing orders.

Associate:

Dated:    4 July 2022

SCHEDULE OF PARTIES