Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368)

[2004] NSWSC 489

CITATION:	Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 489
HEARING DATE(S):	21/05/04
JUDGMENT DATE:	21 May 2004
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Leave to inspect granted.
CATCHWORDS:	Practice and Procedure - Access to Court file
LEGISLATION CITED:	Evidence Act
PARTIES :	Desmond Henry Randall (Plaintiff) Aristocrat Leisure Limited (ACN 002 818 368) (Defendant)
FILE NUMBER(S):	SC 50066/03
COUNSEL:	No appearance (Plaintiff) Ms Judith Healy (solicitor) (Defendant) Mr A Leopold (Dorajay Pty Limited)
SOLICITORS:	Toomey Pegg Drevikovsky (Plaintiff) Phillips Fox (Defendant) Maurice Blackburn Cashman (Dorajay Pty Limited)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 21 May 2004 ex tempore
Revised 3 June 2004

50066/03 Desmond Henry Randall v Aristocrat Leisure Limited

JUDGMENT – Application by Dorajay Pty Limited for transcript access and access to certain exhibits and affidavits

1 There is before the court a notice of motion brought by Dorajay Pty Limited [“Dorajay”] in proceedings no. 50066/03 being the proceedings in which Mr Desmond Henry Randall is plaintiff and Aristocrat Leisure Limited is defendant.

2 As is common ground, those proceedings were heard over a number of weeks recently. Indeed there are some minor areas in relation to which my understanding is that the final hearing may not yet be complete. Leave was granted in particular for the plaintiff to examine whether or not it wished to take any and if so what form of further or other steps at least in relation to a very late amendment allowed to the defendant’s pleadings.

3 The application presently before the court is brought by Dorajay as applicant in Federal Court proceedings N362/04 transferred from the Supreme Court of Victoria to the Federal Court, in which proceedings Aristocrat Leisure Limited is the respondent. The Federal Court proceedings are brought by Dorajay on its own behalf as a former shareholder of Aristocrat and on behalf of other present and former shareholders of Aristocrat.

4 The application seeks leave for the applicant to inspect and copy, or alternatively procure copies, from the reporting services branch of the transcript of the hearing. It seeks leave to inspect and copy affidavits to the extent admitted into evidence in the hearing. It seeks leave to inspect and copy exhibits to affidavits to the extent they were admitted into evidence in the hearing.

5 The affidavit is supported by an affidavit made by Ms Rebecca Gilsenan solicitor, in the employ of the solicitor for the applicant. She has inter alia summarised the common parameters of the Federal Court case against Aristocrat Leisure Limited and of the case which has been heard before this court.

6 I am satisfied that there are sufficient common and similar claims made in the two sets of proceedings to make it entirely appropriate, subject to the matters to which I will refer for Dorajay, as a parameter of the principle of open justice, to generally have an inspection of the materials which the relevant principles dictate be permitted.

7 The circumstances which are before the court also involve the forensic tactics of the parties in relation to the Federal Court proceedings.

8 By a motion of 5 May 2004, Aristocrat Leisure Limited sought orders striking out certain paragraphs of the statement of claim and requested further and better particulars from the applicant. The applicant’s solicitor had stated that the applicant was not presently able to give those particulars but would do so after discovery.

9 The formal position with respect to the Federal Court proceedings is that a section of the pleading in the Federal Court was struck out by order of Stone J; see judgment of 20 May 2004. Her Honour also granted the applicant leave to file and serve an amended statement of claim by 1 June 2004. The burden of the case before the court brought by Dorajay is that the materials which it seeks to access from the Supreme Court file will be clearly apposite to the manner in which it further approaches either its re-pleading or the taking of other forensic tactics in the Federal Court proceedings.

10 For reasons which the transcript of today’s hearing will disclose, the application for the court to grant leave to inspect the transcript is, as I understand it, unnecessary. That application can be made directly to court reporting. My understanding is that court reporting will make available the transcript to parties that satisfy court reporting of a relevant interest.

11 The affidavits and statements which were admitted into evidence and became exhibits were in a number of cases, the subject of objections which were sustained. In so far as sections of the affidavits or statements then were rejected or not read, it will be necessary for a white out exercise to remove those from the version or copy of those documents which is to be made available to Dorajay.

12 The Court has made plain during the course of the argument that because of the current state of the Supreme Court proceedings and the fact that the judgment is being presently written, subject of course to the further evidence or submissions which may come forward on the one or two disparate matters which remain to be before the court, it is simply ‘impracticable’, to use a neutral term, for the efficient administration of justice for the court’s copy of the statements to now be made available to Dorajay.

13 The court has extracted or will in the course of the short minutes of order which come forward, extract an undertaking by Dorajay to pay the reasonable costs of Aristocrat Leisure Limited’s legal advisers of and occasioned by any work which will be necessary for the purpose of making available to Dorajay’s legal advisors, a copy of the statements and affidavits which went into evidence [duly whited out].

14 The applicant also seeks leave to inspect a copy of the exhibits to the affidavits to the extent they were admitted into evidence and the comments that I was about a few minutes ago are apposite to that. In that regard there is quite an exercise to travel through the relevant materials to identify which of the PX documents are and which are not originally appended as exhibits to affidavits or statements or as annexures thereto. I understand that that exercise can be carried out by Aristocrat provided that Dorajay undertake to the court to pay the reasonable costs of and occasioned by that exercise.

15 In those circumstances, the matter should stand down for the purpose of short minutes of order coming forward. There having not been any opposition to the application pursued by Dorajay, I do not imagine that it is appropriate for any costs orders to be made. I am content to reserve costs.

16 On many occasions the Court gave rulings in relation to objections – “allow as”, and there is a short “subj/136” for example, which means it is allowed only as evidence of the subjective state of mind of the witness and for no other purpose. There are a similar miscellany of short hand approaches to subj/136. 136 means a limiting order is made under the Evidence Act 1995, accordingly. Those sections may remain in the statements.

I certify that paragraphs 1 - 16
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 21 May 2004 ex tempore
and revised 3 June 2004

___________________
Susan Piggott
Associate

Last Modified: 06/10/2004