IceTV Pty Ltd v Ross & ors

[2008] NSWSC 1428

CITATION:	IceTV Pty Ltd v Ross & ors [2008] NSWSC 1428
HEARING DATE(S):	23 December 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	23 December 2008
DECISION:	Second cross-claim to be heard with main proceedings. February hearing dates vacated.
CATCHWORDS:	PROCEDURE – whether second cross-claim should be heard with main proceedings – whether February hearing dates should be vacated – whether defendants would be prejudiced by vacating hearing dates
CATEGORY:	Procedural and other rulings
PARTIES:	IceTV Pty Ltd (plaintiff) Duncan Ross (first defendant) Peter Vogel (second defendant) Vogel Ross Pty Ltd (third defendant)
FILE NUMBER(S):	SC 2577/07
COUNSEL:	Mr J M Ireland QC (plaintiff) Mr D Ross (first defendant) (in person) Mr P Vogel (second defendant) (in person)
SOLICITORS:	Bartier Perry (plaintiff)

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

BRERETON J

Tuesday 23 December 2008

2577/07 IceTV Pty Ltd v Duncan Ross & ors

JUDGMENT (ex tempore) On application for second cross-claim to be heard with substantive proceedings and vacation of hearing date

1 HIS HONOUR: On 17 November 2008, I granted leave to the defendants to file a second cross-claim, and directed that it be filed and served by 24 November; that any request for particulars be served by 8 December and answered by 22 December, and that the second cross-claim be determined separately and after the primary proceedings, which are listed for hearing before me for four days commencing 23 February 2009. However, I left open the possibility that those February dates might have to be sacrificed, depending on how much of the draft cross-claim was ultimately permitted and other matters. The plaintiff now moves for directions to the effect that the second cross-claim be heard with the substantive proceedings, and for vacation of the February dates to permit that to take place.

2 I do not consider that the direction previously made for separate hearings forecloses that application, and it was certainly not my intention to determine that question finally when I gave judgment in November.

3 On reviewing the pleadings, it is plain that the issues raised by the second cross-claim in very large part overlap issues raised by the defendants' defence to the statement of claim; that there will be a substantial amount of common evidence; that most, if not all, of the witnesses will be the same; and that questions of credit will arise. Those matters taken together make it highly undesirable that the second cross-claim be heard apart from the primary proceedings, and I am now satisfied that they should be heard together. I will therefore vacate order 4 made on 17 November (that the second cross-claim be determined separately and after the primary proceedings) to the intent that the proceedings and both cross-claims be heard together.

4 That leaves for consideration whether that can take place in the time allotted for the hearing in February, or whether it is necessary to vacate the hearing. On the one hand, the commonality of issues suggests that the plaintiff should be in a position to meet most of the issues raised by the cross-claim in February. On the other, as the plaintiff points out, the oppression suit raised by the second cross-claim does raise new issues, including the decision of the directors of the plaintiff to institute and prosecute the present proceedings, which will require examination and explanation for the first time. (It is said that there is also some outstanding issue concerning representation of two of the cross-defendants who were joined only when leave to file the second cross-claim was granted, but I cannot imagine that it could take more than a couple of days to resolve that).

5 The hearing is just two months away. In reality, given the time of year, that is probably less than one month of time at any other time of the year. Although it seems to me that the plaintiff should be in a position to file any further evidence by mid February, that will leave only a very short time before the hearing for investigation and evidence in reply. The issues will be expanded by the oppression suit, which may result in more than the four days currently allocated for the proceedings being required.

6 Mr Ireland QC, who appears for the plaintiff, assures me that he does not consider that all parties can be in a position to meet the case fairly by 23 February, and I give his experienced judgment considerable weight. Although the defendants legitimately point to previous decisions that the case is one for expedition, I also have to bear in mind that, as a condition of having any of their cross-claim allowed, they acknowledged on a previous occasion, as recorded in paragraph 11 of my judgment of 17 November, that the difference between a hearing in February 2009 and one several months later was not such as to deter them from pressing their application to seek leave to bring the second cross-claim, and accepting vacation of the February date if necessary (though they contended that it should not be necessary to lose those dates).

7 As no injunction remains in force, the urgency from the defendants' perspective is in the nature of vindication of their position and recovery of damages on the undertaking as to damages. Were the proceeding to continue in February without the second cross-claim, their claim for damages would be limited to the undertaking as to damages given by the plaintiff which, as the defendants have previously pointed out, prima facie is in no position to satisfy that undertaking.

8 Weighing all those matters:

· I do not think that there is significant prejudice to the defendants from vacating the February dates;

· I bear in mind the contention advanced on behalf of the plaintiff that it could not have its further evidence on in sufficient time to ensure that all parties would fairly conduct a hearing in February;

· I bear in mind also that the defendants have foreshadowed, in a letter of 27 November 2008, that they are preparing new pleadings based on causes of action which I did not permit to be raised in the second cross-claim, which they may seek to have heard at the same time as the second cross-claim.

· I conclude that the more just course is to vacate the hearing. (When the matter returns before me on 6 February as I propose, I would expect the defendants to be in a position to indicate what their proposed new pleadings if pressed, are).

9 I set aside order 4 made on 17 November 2008.

10 I vacate the hearing appointed to commence before me on 23 February 2009. I adjourn the proceedings to 6 February 2009, for mention, at 11.00am before me.

11 I direct that by 29 January the defendants notify the plaintiff and lodge with my associate a draft of any further pleading that they propose to file or seek leave to file, as referred to in their letter of 27 November 2008.

12 I will not make directions in respect of further evidence at this stage but I would expect the plaintiff to proceed with all due dispatch in the service of any further evidence that it might be minded to serve.

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