Magarditch v Australia & New Zealand Banking Group Ltd & Anor [1998] FCA 246

Magarditch v Australia & New Zealand Banking Group Ltd & Anor [1998] FCA 246

The subpoena should not be set aside because Mr Hedges may be able to give relevant evidence about the extent of communications between VACC and the liquidator concerning pursuit of Magic Australia's insurance claim. Although Mr Hedges may have been justified in bringing the motion because Mr Sourian had not clearly explained the proposed relevance of his evidence, the appropriate course was to dismiss the notice of motion without an order as to costs. Leave was given only to file a notice of motion seeking leave to amend the amended statement of claim by adding allegations that the liquidator breached duties and was negligent in failing to pursue a cross-claim in proceedings 14913 of 1989.

Jurisdiction
Australia
Judgment Date
02 March 1998
Procedural Posture
Federal Court Proceedings Transferred From the Equity Division of the Supreme Court of New South Wales Under Cross Vesting Legislation; Interlocutory Motion to Set Aside a Subpoena and Application for Leave to File a Notice of Motion Seeking Leave to Amend the Amended Statement of Claim / Ex Tempore Reasons on Interlocutory Matters Before Hearing Listed Before Einfeld J on 9 March 1998
Outcome
Notice of motion to set aside the subpoena dismissed without order as to costs; applicants granted leave to file a notice of motion seeking leave to amend the amended statement of claim in the limited terms identified by the Court.
Legal Topics
['subpoena to Solicitor' 'application to Set Aside Subpoena' 'amendment of Statement of Claim' 'duties of Liquidator' 'alleged Negligence by Liquidator' 'company in Liquidation' 'insurance Claim Following Fire' 'cross Vesting' 'possible Res Judicata or Issue Estoppel']
['civil Procedure' 'corporations and Liquidation' 'insurance' 'negligence'] ['subpoena to Solicitor' 'application to Set Aside Subpoena' 'amendment of Statement of Claim' 'duties of Liquidator' 'alleged Negligence by Liquidator' 'company in Liquidation' 'insurance Claim Following Fire' 'cross Vesting' 'possible Res Judicata or Issue Estoppel']

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Procedural Posture

Federal Court Proceedings Transferred From the Equity Division of the Supreme Court of New South Wales Under Cross Vesting Legislation; Interlocutory Motion to Set Aside a Subpoena and Application for Leave to File a Notice of Motion Seeking Leave to Amend the Amended Statement of Claim / Ex Tempore Reasons on Interlocutory Matters Before Hearing Listed Before Einfeld J on 9 March 1998

Legal Issues

  1. 1 ['Whether the subpoena addressed to Mr Brent Hedges, solicitor, should be set aside.' 'Whether any order as to costs should be made on the motion to set aside the subpoena.' 'Whether the applicants should be given leave to file a notice of motion seeking leave to amend the amended statement of claim to add allegations that the liquidator breached duties and was negligent in failing to pursue a cross-claim in proceedings 14913 of 1989.']

Ratio Decidendi

The subpoena should not be set aside because Mr Hedges may be able to give relevant evidence about the extent of communications between VACC and the liquidator concerning pursuit of Magic Australia's insurance claim. Although Mr Hedges may have been justified in bringing the motion because Mr Sourian had not clearly explained the proposed relevance of his evidence, the appropriate course was to dismiss the notice of motion without an order as to costs. Leave was given only to file a notice of motion seeking leave to amend the amended statement of claim by adding allegations that the liquidator breached duties and was negligent in failing to pursue a cross-claim in proceedings 14913 of 1989.

Court Disposition

Notice of motion to set aside the subpoena dismissed without order as to costs; applicants granted leave to file a notice of motion seeking leave to amend the amended statement of claim in the limited terms identified by the Court.

Orders

  • ['Applicants have leave to file a notice of motion seeking leave to amend the amended statement of claim by adding allegations that the liquidator was in breach of his duties and was negligent in failing to pursue a cross-claim in proceedings 14913 of 1989 in the Common Law Division of the Supreme Court.' '10.15 am...