Capital Webworks Pty Ltd v Adultshop.com.limited [2007] FCA 262

Capital Webworks Pty Ltd v Adultshop.com.limited [2007] FCA 262

The 15 April 2005 order should be set aside because there was not sufficient evidence to justify it, and the Full Court's deference to practice and procedure was not a basis for sustaining an order found in principle to be incorrect by its members. The discretion of the docket judge should be exercised to rectify this apparent miscarriage of justice.

Parties
Applicant: Capital Webworks Pty Ltd; First Respondent: Adultshop.com.limited; Second Respondent: Malcolm Day; Third Respondent: Melbourne Information Technologies Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
02 March 2007
Procedural Posture
Application to Set Aside Interlocutory Order / Interlocutory, Post Appeal and Special Leave Refusal
Outcome
Interlocutory order set aside
Legal Topics
Interlocutory Orders, Practice and Procedure, Discretion to Set Aside Orders
Civil Procedure Interlocutory Orders Practice and Procedure Discretion to Set Aside Orders

Case Brief

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Parties

Capital Webworks Pty Ltd

Applicant

Adultshop.com.limited

First Respondent

Malcolm Day

Second Respondent

Melbourne Information Technologies Australia Pty Ltd

Third Respondent

Procedural Posture

Application to Set Aside Interlocutory Order / Interlocutory, Post Appeal and Special Leave Refusal

Legal Issues

  1. 1 Whether the Court should exercise discretion to set aside an earlier interlocutory order requiring disclosure of beneficial ownership of applicant's cause of action

Ratio Decidendi

The 15 April 2005 order should be set aside because there was not sufficient evidence to justify it, and the Full Court's deference to practice and procedure was not a basis for sustaining an order found in principle to be incorrect by its members. The discretion of the docket judge should be exercised to rectify this apparent miscarriage of justice.

Court Disposition

Interlocutory order set aside

Orders

  • Order 1 made on 15 April 2005 be set aside.
  • The matter be set down for further directions on 12 March 2007 at 10:45 am.