Bonham v Iluka Resources Limited [2017] FCAFC 95

Bonham v Iluka Resources Limited [2017] FCAFC 95

The applicant demonstrated both subjective belief and an objectively reasonable basis for believing he may have a right to obtain relief against Iluka, based on factors that existed at both May and July 2012 and were directly relevant to implied representations made by Iluka. The primary judge erred by focusing on Iluka's state of knowledge rather than the grounds for the applicant's belief. Discretion should not have been exercised against preliminary discovery due to conduct of applicant's solicitors, where the applicant did not authorise or direct such conduct.

Jurisdiction
Australia
Judgment Date
09 June 2017
Procedural Posture
Appeal / Leave to Appeal and Appeal From Dismissal of Application for Preliminary Discovery
Outcome
Leave to appeal granted; appeal allowed; orders for preliminary discovery against Iluka made; costs to applicant
Legal Topics
['preliminary Discovery' 'misleading or Deceptive Conduct' 'continuous Disclosure Obligations' 'implied Representations' 'reasonable Basis for Belief']
['practice and Procedure' 'commercial Law' 'corporations Law'] ['preliminary Discovery' 'misleading or Deceptive Conduct' 'continuous Disclosure Obligations' 'implied Representations' 'reasonable Basis for Belief']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal and Appeal From Dismissal of Application for Preliminary Discovery

Legal Issues

  1. 1 ['Whether the applicant had a reasonable basis for belief that he may have a right to obtain relief in the Court' "Whether evidence of prospective applicant's subjective belief is required and what evidence suffices" 'Nature of evidence required to establish subjective belief for preliminary discovery under rule 7.23 of Federal Court Rules 2011' "Whether discretion should be exercised against the grant of the application due to conduct of applicant's solicitors"]

Ratio Decidendi

The applicant demonstrated both subjective belief and an objectively reasonable basis for believing he may have a right to obtain relief against Iluka, based on factors that existed at both May and July 2012 and were directly relevant to implied representations made by Iluka. The primary judge erred by focusing on Iluka's state of knowledge rather than the grounds for the applicant's belief. Discretion should not have been exercised against preliminary discovery due to conduct of applicant's solicitors, where the applicant did not authorise or direct such conduct.

Court Disposition

Leave to appeal granted; appeal allowed; orders for preliminary discovery against Iluka made; costs to applicant

Orders

  • ["Leave to appeal from Kerr J's decision of 15 July 2015 is granted and the draft notice of appeal stands as the notice of appeal" 'Appeal is allowed' 'Order made by Kerr J is set aside; in lieu, order pursuant to rule 7.23 of Federal Court Rules 2011 that Iluka provide discovery to Mr Bonham of the categories of...