Hawke v ACN 117 688 356 Pty Ltd

[2007] NSWSC 1262

CITATION:	Hawke v ACN 117 688 356 Pty Ltd [2007] NSWSC 1262
HEARING DATE(S):	19 October 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	19 October 2007
DECISION:	Motion to enforce undertaking dismissed with costs.
CATCHWORDS:	PROCEDURE – Miscellaneous procedural matters – alleged undertaking by counsel to court – liberty to apply
PARTIES:	Elizabeth Hawke (plaintiff) ACN 117 688 356 Pty Ltd (defendant)
FILE NUMBER(S):	SC 4730/07
COUNSEL:	Mr M W Sneddon (plaintiff) Mr M E Luitingh (defendant)
SOLICITORS:	Proctor Phair Lawyers (plaintiff) Ziman & Ziman Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 19 October 2007

4730/07 Elizabeth Hawke v ACN 117 688 356 Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: On 5 October 2007 I fixed this matter for hearing before Palmer J on an expedited basis on 23 October and made directions in the usual form, including that subpoenas may be made returnable before the Registrar on 18 October, and granting liberty to any party to apply to the trial judge concerning directions for the hearing on two days' notice by arrangement with the trial judge's Associate.

2 In the course of the application for expedition, counsel for the plaintiff tendered a document which has been variously described – by the defendant as a settlement sheet, and by the plaintiff as an authority and direction – to which reference was made in the course of the application for expedition. Counsel for the defendant did not then have a copy of it. There is dispute as to what was said between the parties as to provision of a copy, but because an undertaking to the Court is a serious and formal matter and because, if given, such an undertaking is always recorded in the record of proceedings kept by my Associate (as distinct from the transcript), an undertaking to the Court would not or could not have been given, no formal notation of such an undertaking having been made.

3 On 9 October 2007, at 12.58pm, a director of the defendant sent an email to the plaintiff's solicitor, asking: "Could you please forward a copy of the settlement sheet (from DJ Capital) that your counsel had in Court last week", and indicating a requirement for it "by close of business today in order for us to adhere to the timetable set by the Court specifically in relation to subpoenas". That email did not provoke a response, and was followed up by a further email on 10 October 2007 at 12.24pm. The plaintiff's solicitor responded, at 2.43pm, not inappropriately, that it was inappropriate that the director of the defendant should contact him directly when the defendant had a solicitor on the record. At 2.55pm, the defendant's solicitor repeated the request, and at what appears to be 8.03pm, forwarded a letter by facsimile repeating the request and asserting that the request was made "pursuant to an undertaking by your counsel at Court on 5 October 2007”.

4 On 11 October, at 4.01pm, the plaintiff's solicitor responded, denying that any such undertaking had been given and requesting clarification as to whether the document sought was, in fact, an authority and direction to DJ Capital Solutions (as distinct from a settlement sheet from DJ Capital, which had been the subject of the expressed request). At 5.30pm, the defendant's solicitor responded asserting that an undertaking had been given, and advising that the matter had been listed before Windeyer J as Duty Judge the following Tuesday morning.

5 Some time in the course of the afternoon of 11 October, an unfiled and unsealed copy of the Notice of Motion, to which I shall come, was served. At 6.26pm on 11 October, the plaintiff's solicitor responded, enclosing a copy of the authority and direction and continuing to deny that any undertaking had been given.

6 Apparently, the defendant had at about 5.00pm filed the Notice of Motion which comes before me today. The Motion claimed, in paragraph 1, an order that the plaintiff produce to the defendant by no later than 5pm on 16 October the settlement sheet "which was the subject of an undertaking by her Counsel to this Honourable Court that it would be produced to the defendant, which undertaking was made on Friday 5 October 2007."

7 Thus, by now, it was being asserted that the document had been the subject of an undertaking by counsel to the Court. Such an assertion, and one that the undertaking has not been honoured, ought not lightly be made. As I have said, whatever may have passed between the parties, I cannot accept that there was an undertaking to the Court. An allegation that there has been an undertaking to a Court, and one that has not been complied with, is a serious one and it is unsurprisingly that having been asserted against counsel, it was fiercely resisted.

8 The document having been produced at 6.26pm on 11 October, the Motion was served at about 3pm on 12 October, which provoked increasingly agitated exchanges and denials that there had been an undertaking to the Court.

9 When the motion came before Windeyer J on 16 October, the balance of the motion was stood over to today before me at the request of the plaintiff, who wished to have the matter disposed of and the question of costs resolved rather than accede to the defendant's proposition that the matter should be adjourned to the trial, or that costs be costs in the cause.

10 Why resort was ever had to the process of filing a Motion is difficult to understand. It is true that time was short, but a Notice to Produce could have been used, and a date for return of subpoenas and Notices to Produce had already been allocated. The granting of liberty to apply in pretrial directions does not mean that that liberty has to be exercised when there are other appropriate means of proceeding.

11 In this case, I do not think it was a responsible use of court process to file a Notice of Motion effectively by way of enforcement of an undertaking to the Court, when no such undertaking had been given, and when there were cheaper, more convenient and less inflammatory ways of obtaining production of the document, particularly when so short a time had elapsed since the request for its production.

12 I order that the Motion be dismissed with costs.

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