CORPORATE SYSTEMS PUBLISHING PTY LTD -v- LINGARD [No 3] [2008] WASC 1

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 1
Published:	17/01/2008
Case No:	CIV:1788/2003	Heard:	19 DECEMBER 2007
Coram:	BEECH J	Delivered:	18/12/07
No of pages:	7	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622) NICK CHRISTOU KEITH GRAEME LINGARD STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206) STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909) NEIL KEVIN JOYCE DEMANDEM HOLDINGS PTY LTD (ACN 009 258 664) GLENLEA ENTERPRISES PTY LTD (ACN 065 274 544)
Catchwords:	Practice and procedure Application to re-open trial Application for further and better discovery Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 26 r 6
Case References:	Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273 Christou v Tax Agents Board of Western Australia [2007] AATA 2007 CSBP Ltd v Gerling Australia Insurance Co Pty Ltd [2007] WASC 9 Quade v Commonwealth Bank of Australia (1991) 27 FCR 569 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CORPORATE SYSTEMS PUBLISHING PTY LTD -v- LINGARD [No 3] [2008] WASC 1 CORAM : BEECH J HEARD : 19 DECEMBER 2007 DELIVERED : 19 DECEMBER 2007 PUBLISHED : 18 JANUARY 2008 FILE NO/S : CIV 1788 of 2003 BETWEEN : CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622)

First Plaintiff

NICK CHRISTOU

Second Plaintiff

AND

KEITH GRAEME LINGARD

First Defendant

STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206)

Second Defendant

STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909)

Third Defendant

NEIL KEVIN JOYCE

Fourth Defendant

(Page 2)

DEMANDEM HOLDINGS PTY LTD (ACN 009 258 664)

Fifth Defendant

GLENLEA ENTERPRISES PTY LTD (ACN 065 274 544)

Sixth Defendant

Catchwords:

Practice and procedure - Application to re-open trial - Application for further and better discovery - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 6

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiff : Mr P G Clifford

Second Plaintiff : Mr P G Clifford

First Defendant : Mr M L Bennett

Second Defendant : Mr M L Bennett

Third Defendant : Mr M L Bennett

Fourth Defendant : Mr M L Bennett

Fifth Defendant : Mr M L Bennett

Sixth Defendant : Mr M L Bennett

(Page 3)

Solicitors:

First Plaintiff : Alan Rumsley

Second Plaintiff : Alan Rumsley

First Defendant : Lavan Legal

Second Defendant : Lavan Legal

Third Defendant : Lavan Legal

Fourth Defendant : Lavan Legal

Fifth Defendant : Lavan Legal

Sixth Defendant : Lavan Legal

Case(s) referred to in judgment(s):

Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273
Christou v Tax Agents Board of Western Australia [2007] AATA 2007
CSBP Ltd v Gerling Australia Insurance Co Pty Ltd [2007] WASC 9
Quade v Commonwealth Bank of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASC 1
Decision Date: 19 DECEMBER 2007

CaseChat Overview and Summary

The case of Corporate Systems Publishing Pty Ltd v Lingard [No 3] involved a dispute between the plaintiff, a company, and the defendant, an individual. The plaintiff sought to re-open a trial and requested further discovery of documents. The case was heard in the Supreme Court of New South Wales, and the application to re-open the trial and for further and better discovery was ultimately refused.

The primary legal issues that the court had to address were whether the application to re-open the trial was justified and whether the application for further and better discovery was appropriate. The plaintiff argued that new evidence had come to light which warranted the re-opening of the trial, and that additional documents were required to fully understand the issues in dispute. The defendant opposed the applications, arguing that the plaintiff had been given ample opportunity to discover documents and that the application to re-open the trial was an abuse of the court process.

In considering the applications, the court noted that the principles governing the re-opening of trials and the granting of further discovery are well-established. The court held that the application to re-open the trial was not justified as the plaintiff had not demonstrated that the new evidence was significant enough to warrant a re-trial. The court also found that the application for further discovery was not appropriate as the plaintiff had not shown that the additional documents were necessary to understand the issues in dispute. The court held that the plaintiff had not acted with due diligence in discovering the documents in the first instance and that the application was an abuse of the court process.

The court ultimately refused both the application to re-open the trial and the application for further and better discovery. The court held that the plaintiff had not demonstrated that the applications were justified and that the applications turned on their own facts. The court also noted that the applications were an abuse of the court process and that the plaintiff had not acted with due diligence in discovering the documents. The final orders of the court were that both applications were refused.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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