Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066

Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066

Mr Brooke and the third respondent intentionally used file-shredding software to permanently destroy emails and attachments directly relevant to the allegations in paragraph 105 of the amended statement of claim, after being on notice of their discovery obligations. This conduct constitutes an abuse of process and has caused real and significant prejudice to MKP’s ability to prosecute this part of its claim, justifying the striking out of the defence to paragraph 105. However, evidence did not support striking out the entire defence, as the prejudice was limited to those direct issues.

Parties
Applicant: Moody Kiddell & Partners Pty Ltd; First Respondent: Benjamin John Arkell; Second Respondent: David Andrew Brooke; Third Respondent: Broolend Pty Ltd (ACN 125 742 225) t/a Brooke Financial Solutions
Jurisdiction
Australia
Judgment Date
22 October 2013
Procedural Posture
Interlocutory Application / Ruling on Application to Strike Out Part of Defence
Outcome
Application granted in part; defence to paragraph 105 of amended statement of claim struck out.
Legal Topics
Abuse of Process, Discovery, Evidence Destruction, Strike Out of Pleadings
Civil Procedure Abuse of Process Discovery Evidence Destruction Strike Out of Pleadings

Case Brief

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Parties

Moody Kiddell & Partners Pty Ltd

Applicant

Benjamin John Arkell

First Respondent

David Andrew Brooke

Second Respondent

Broolend Pty Ltd (ACN 125 742 225) t/a Brooke Financial Solutions

Third Respondent

Procedural Posture

Interlocutory Application / Ruling on Application to Strike Out Part of Defence

Legal Issues

  1. 1 Whether the destruction of documents by the second and third respondents justifies striking out part of their defence as an abuse of process
  2. 2 Whether the applicant (MKP) has suffered prejudice as a result of the conduct
  3. 3 What is the appropriate and proportionate remedy in the circumstances

Ratio Decidendi

Mr Brooke and the third respondent intentionally used file-shredding software to permanently destroy emails and attachments directly relevant to the allegations in paragraph 105 of the amended statement of claim, after being on notice of their discovery obligations. This conduct constitutes an abuse of process and has caused real and significant prejudice to MKP’s ability to prosecute this part of its claim, justifying the striking out of the defence to paragraph 105. However, evidence did not support striking out the entire defence, as the prejudice was limited to those direct issues.

Court Disposition

Application granted in part; defence to paragraph 105 of amended statement of claim struck out.

Orders

  • The proceeding listed for further hearing and for the making of further orders regarding the interlocutory application filed 2 August 2013 on a date to be determined in consultation with the parties.