IceTV v Ross

[2008] NSWSC 898

CITATION:	IceTV v Ross [2008] NSWSC 898
HEARING DATE(S):	19/08/08
JUDGMENT DATE :	19 August 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	19 August 2008
DECISION:	See para 44 of judgment.
CATCHWORDS:	INJUNCTIONS – interlocutory injunctions – undertaking as to damages – whether undertaking should be enforced prior to final determination of proceedings – final determination highly material to whether undertaking should be enforced – question cannot justly be determined before final determination of proceedings - PRACTICE AND PROCEDURE – joinder of parties – whether a party can be joined as a plaintiff without its consent – proposed co-plaintiff not party to the contract in question – stay refused - PRACTICE AND PROCEDURE – pleadings – cross-claims – application for leave to file cross-claims – multifarious claims – leave refused in respect of matters that are embarrassing, outside jurisdiction, unconnected with first proceedings or for which the cross-claimants lack standing
LEGISLATION CITED:	Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) Fair Trading Act 1987 (NSW) Civil Procedure Act 2005 (NSW)
CASES CITED:	IceTV v Ross [2007] NSWSC 635 IceTV v Ross [2007] NSWSC 1232 Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545 Fourie v Le Roux [2007] 1 WLR 320 Roberts v Holland [1893] 1 QB 665 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Short v Crawley (No 30) [2007] NSWSC 1322
TEXTS CITED:	I C F Spry, The Principles of Equitable Remedies, 7th ed (2007) Lawbook Co
PARTIES:	IceTV Pty Ltd (ACN 003 552 216) v Duncan Ross & Ors
FILE NUMBER(S):	SC 2577/07
COUNSEL:	Plaintiff: J M Ireland QC Defendants: In person
SOLICITORS:	Plaintiff: Bartier Perry Defendants: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 19 August 2008

2577/07 IceTV Pty Ltd (ACN 003 552 216) v Duncan Ross & Ors

JUDGMENT

1 HIS HONOUR: The first, second and third defendants apply by notice of motion for the following orders: first, that leave be granted to file four cross-claims in the form annexed to the notice of motion; second, for a declaration that an injunction made on 3 July 2007 in these proceedings against the defendants ought not to have been made; third, an immediate enquiry as to damages by virtue of the plaintiff's undertaking as to damages given to the Court on the plaintiff's application for the orders made on 3 July 2007; fourth, that IceTV Holdings Ltd, ACN 117 626 338, which is the holding company of the plaintiff, be joined as a plaintiff; and fifth, that IceTV Holdings correct minutes of an annual general meeting of members held on 30 November 2007, "so as not to pre-empt the decision of this Court in these proceedings".

2 The background to the present application is a contested application for an interlocutory injunction heard by Brereton J on 28 May 2007. The plaintiff there sought to restrain the defendants from certain conduct which it alleged was in breach of conditions in the first and second defendants' contracts of employment with the plaintiff. The relevant contractual restraint applied for a period of one year after termination of their employment and expired on 4 October 2007. Brereton J ordered that upon the plaintiff, by its counsel, giving to the Court the usual undertaking as to damages, that the defendants be restrained until 4 October 2007 from, inter alia, carrying on, or being involved in, any business similar to, or competitive with, the business of the plaintiff carried out during the 12-month period prior to 4 October 2006. This included the development or pursuit of media content provision to set-top boxes, personal video recorders or similar devices, and canvassing or soliciting the custom of any person who had entered into discussions or negotiations with the plaintiff during the period of 12 months prior to 4 October 2006, including five named entities among whom was "Mobilesoft", and also from divulging to any person certain identified confidential information (see IceTV v Ross [2007] NSWSC 635).

3 On 28 September 2007, Brereton J discharged the injunction (see IceTV v Ross [2007] NSWSC 1232). He did so on the defendants' application. The defendants tendered evidence that the plaintiff had a deficiency of funds of about $2.7 million. His Honour said:

“ 5 It is, I think, quite plain that I proceeded on the basis that IceTV's undertaking as to damages was a valuable one which would afford protection to the defendants in the event that it turned out that an interlocutory injunction was wrongly granted.
6 On the present application, the defendants have tendered evidence which shows that in and about June of this year the financial position of IceTV was a deficiency of funds of about $2.7 million. That makes manifest that IceTV's undertaking as to damages is not a valuable one. Had that been the state of the evidence on 28 May 2007, or when I gave judgment on 3 July 2007, I cannot conceive that I would have granted an interlocutory injunction without requiring that security for it be provided – or, at the very least, that IceTV's directors make themselves amenable to the undertaking as to damages.
7 As things presently stand, I would not find that there was any wilful deception involved in the non-disclosure on 28 May of IceTV’s financial position, but it was a material matter to be disclosed. It seems that IceTV produced material to the Court in response to a Notice to Produce, and a faint submission was made by the defendants on the interlocutory hearing to the effect that an undertaking as to damages ‘is of limited value given the plaintiff's limited means and assets’, but evidence does not seem to have been adduced on either side to show just how precarious the plaintiff's financial position really was. ”

4 Order 2 in the notice of motion is sought as a prelude to an immediate enquiry as to damages pursuant to the plaintiff's undertaking as to damages. The defendants contend that an immediate enquiry is called for rather than have the question of enforcement of the plaintiff's undertaking being adjourned to await the outcome of the final hearing. The defendants rely in part upon the reasons of Brereton J in his judgment of 28 September 2007 in support of their contention that the injunction given on 3 July 2007 ought not to have been made. They also contend by order 2 that the injunction ought not to have been made because the restraints which the plaintiff sought to enforce were invalid and because they say the proceedings are an abuse of process.

5 It is not appropriate to make the declaration sought in paragraph 2 of the notice of motion. The question of the validity of the restraints and indeed the question as to whether the proceedings involve an abuse of process are matters which can only be decided after a final hearing. It would be quite inappropriate for a single judge to make the declarations sought in para 2 of the notice of motion. Nor do I consider that the making of such a declaration is a necessary prerequisite to the making of the order sought in para 3 of the notice of motion.

6 In support of there being an immediate enquiry as to damages, the defendants rely in particular upon the following passage in I C F Spry, The Principles of Equitable Remedies, 7th ed (2007) Lawbook Co at pp 656-657:

“ … even if, when the matter in question is finally disposed of, the plaintiff finally succeeds in obtaining relief, such as through the issue of a perpetual injunction … it may be that the court will nonetheless be called on, in special cases, to exercise its discretion so as to require him to pay damages, on the basis the defendant has unjustly suffered damage through the inappropriate imposition of an interlocutory restraint. This position may arise where, for example, the plaintiff is shown not to have disclosed a material fact that he was under a duty to disclose when he was granted the relevant interlocutory relief and where it is just that the defendant be compensated accordingly. Or again, it may appear at the final hearing, on some ground unrelated to his duty of disclosure, that although the plaintiff is then entitled to a perpetual injunction he was not earlier entitled to interlocutory relief or that he was entitled only to an interlocutory injunction in materially narrower terms … ”

7 As well as submitting that the Court has power to direct an inquiry pursuant to the undertaking as to damages before a final hearing, the defendants submitted that it was appropriate that such power be exercised having regard to the impecuniosity of the plaintiff and to their own financial position. They submitted that any delay in ordering damages could result in irreparable damage. In Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545, Neill LJ said (at 1551-1552):

“ Where an interlocutory injunction is discharged before the trial the court at the time of discharge is faced with a number of possibilities. (a) The court can determine forthwith that the undertaking as to damages should be enforced and can proceed at once to make an assessment of the damages. It seems probable that it will only be in rare cases that the court can take this course because the relevant evidence of damages is unlikely to be available. It is to be noted, however, that in Columbia Pictures Industries Inc v Robinson [1987] Ch 38, Scott J was able, following the trial of an action, to make an immediate assessment of damages arising from the wrongful grant of an Anton Piller order. He pointed out that the evidence at the trial could not be relied on to justify ex post facto the making of an ex parte order if, at the time the order was made, it ought not to have been made (see [1987] Ch 38 at 85). (b) The court may determine that the undertaking should be enforced but then direct an inquiry as to damages in which issues of causation and quantum will have to be considered. It is likely that the order will include directions as to pleadings and discovery in the inquiry. In the light of the decision of the Court of Appeal in Norwest Holst Civil Engineering Ltd v Polysius Ltd The Times, 23 July 1987; Court of Appeal (Civil Division) Transcript No. 644 of 1987 the court should not order an inquiry as to damages and at the same time leave open for the tribunal at the inquiry to determine whether or not the undertaking should be enforced. A decision that the undertaking should be enforced is a precondition for the making of an order of an inquiry as to damages. (c) The court can adjourn the application for the enforcement of the undertaking to the trial or further order. (d) The court can determine forthwith that the undertaking is not to be enforced. ”

8 Peter Gibson LJ said (at 1558) that:

“ If there are matters on which the court cannot yet make a final determination, but which would be material to the question whether it is just to enforce the undertaking, then the court should not take the decision at that stage but should adopt either the third or perhaps the fourth option ... ” [viz stand over the application to a specified time, usually the trial.]

9 His Lordship described the course of adjourning to the trial judge the application to enforce an undertaking as to damages to be determined by him or her at the conclusion of the trial as being the usual practice (at 1560). That was the course taken in that case, notwithstanding that the interlocutory injunction which had been dissolved was a Mareva injunction where there may be better reason for proceeding immediately to enforcement of the undertaking and embarking on an inquiry than in the case of an interlocutory injunction subsequently dissolved which was brought to enforce contractual or other equitable or legal rights. (See also Fourie v Le Roux [2007] 1 WLR 320 at 336 [42].)

10 The final determination of these proceedings is likely to be highly material to a decision as to whether the undertaking as to damages should be enforced. If, at a final hearing, the Court decides that the contractual restraints were valid and that on their proper construction the defendants were in breach of those restraints, and if the Court also then considered that this would have been an appropriate case for the grant of a final injunction at a final hearing prior to the expiry of that period of restraint, then the Court might well conclude that it would not be just to enforce the undertaking. That would be so because had there been such a final hearing, the plaintiff would not have needed to proffer an undertaking as to damages in order to obtain such final relief and the question of the plaintiff's ability to meet an undertaking as to damages would not have arisen. Hence the fact that the interlocutory injunction was discharged because of the plaintiff's inability to make good its undertaking as to damages would prima facie be irrelevant to its entitlement to injunctive relief and hence it would not be just to enforce the undertaking as to damages.

11 It is unnecessary to express a final view on these questions, but it seems to me that the question as to whether the undertaking as to damages should be enforced cannot be decided justly in advance of the final hearing.

12 It was submitted for the defendants that in this case, there had been a failure to disclose a material fact which the plaintiff was under a duty to disclose when the injunction was granted (see The Principles of Equitable Remedies at 657.) Even if this were so, I do not consider that that is a sufficient reason for deciding to enforce the undertaking as to damages in advance of the final hearing. It may be observed, however, that Dr Spry cites no authority for the proposition quoted above and that his reference to enforcing an undertaking on the ground of a plaintiff’s non-disclosure of a material fact which it was under a duty to disclose is to earlier pages of the text which addresses a plaintiff's obligation of disclosure when seeking relief ex parte. That was not this case.

13 The plaintiff says that it was under no relevant duty of disclosure and that it did disclose documents showing its then current financial position by producing documents to the court prior to the hearing pursuant to a notice to produce. It appears there could be a contest as to whether the documents which the plaintiff says were then produced were in fact included in the packet of documents produced and which were inspected by the defendants or their legal representatives. That is not a question which can be decided on the present application. If the question of non-disclosure is ultimately material to a decision as to whether or not the undertaking should be enforced, then that would have to be determined at or after the trial. Whilst the impecuniosity of the parties is good reason for having the question of enforcement of the undertaking resolved as soon as possible, consistently with the orderly despatch of the court’s business, it is not sufficient reason for seeking to determine that question in advance of a final hearing. Accordingly, I will, in due course, order that the application for enforcement of the plaintiff’s undertaking as to damages be adjourned to the trial or further order.

14 As to the fourth order sought in the notice of motion, I am not satisfied that there is power to order that IceTV Holdings be added as a plaintiff without its consent. The notes to Ritchie’s Uniform Civil Procedure New South Wales, r 6.24 say, at [6.24.75]:

“ As a rule, a co-plaintiff will not be joined on the defendant’s application without the plaintiff’s consent. In appropriate circumstances the proceedings may be stayed if the plaintiff does not consent. ”

15 In Roberts v Holland [1893] 1 QB 665, Charles J said, obiter, in a case where it was sought to join as co-plaintiffs, five tenants-in-common, that they:

“ cannot be joined without their own consent in writing. In such a case there is a discretion to stay the action in order that their consent may be obtained, if such a course appears advisable. ”

16 I see no occasion to stay the present proceedings until IceTV Holdings joins as a co-plaintiff. It is not a party to the contract which the plaintiff seeks to enforce. Prima facie, it would not be a necessary or proper party to the proceedings. The fact that it is the sole shareholder of the plaintiff and that its directors control the plaintiff and have caused the plaintiff to bring the proceedings is not a sufficient reason to join it. Nor is the fact that the plaintiff has a substantial deficiency of net assets a sufficient reason to join the plaintiff’s holding company so as to render it liable for costs. I know of no authority which would support such a course. The plaintiff’s impecuniosity is a reason for ordering security for costs. Such security was ordered by Brereton J on 28 September 2007. Accordingly, in due course, I will dismiss the application in prayer 4 of the notice of motion.

17 Paragraph 5 of the notice of motion is a claim for final relief against IceTV Holdings. It cannot be determined on this interlocutory application. It could only be determined after a hearing of the claim against that company.

18 I turn then to the prayer in para 1 in which leave is sought to file four cross-claims. The proposed first cross-claim has three essential parts. After setting out of the relief claimed, it pleads in paras 13-21, that the restraint of trade provisions in the contracts of employment are invalid. Those are matters which will be raised in the defendants’ defence of the plaintiff’s claim. I see no reason why the defendants should not be permitted to seek a declaration as to the invalidity of the restraint.

19 Paragraphs 22-26 plead an alleged implied term of the first and second defendants’ employment with the plaintiff to the effect that the defendants would be employed for at least 24 months and that, by reason of the cancellation of the “expected float” of IceTV Holdings, their employment contracts were frustrated. It is not clear to me what those paragraphs refer to and they are embarrassing in the technical sense. It is not clear to me whether they are intended to sustain a claim for damages arising from termination of contracts of employment. No such claim is expressly pleaded. The pleading of frustration would appear to be inconsistent with it. If that is not the purpose of those paragraphs, what their purpose is is quite unclear.

20 Paragraphs 27-41 are headed “Abuse of process”. The claims in those paragraphs appear to be addressed to, at least, the first, second and third proposed cross-defendants, as well as the plaintiff which is named as a proposed fourth cross-defendant. The first, second and third proposed cross-defendants are said to have been, at all material times, the directors of IceTV Holdings, the ultimate holding company of the plaintiff, and responsible for initiating the proceedings and funding the litigation.

21 The defendants plead, in para 30:

“ There is a history of personal animosity between the cross-claimants on one hand and the first and third cross-defendants on the other hand .”

22 The relevance of that allegation is unclear. It does not appear to be a material fact to any cause of action or claim for relief which the defendants seek to maintain. It is then pleaded that there was an undertaking given by the first, second and third cross-defendants to provide funds to the plaintiff to enable it to pay its debts as and when they fell due. Again, the relevance of that allegation is unclear. The pleader then pleads the injunction given on 3 July 2007 and alleges damages were suffered as a result of it and alleges that the Court was misled by the cross-defendants by their proffering the undertaking knowing it to be valueless. It is alleged the cross-defendants, not only the plaintiff, misled the Court by withholding material. It is then alleged the cross-defendants abused the process of the court by instituting proceedings to effect an object beyond that which the legal process offers:

“ ... including but not limited to causing the cross-claimants damage, restricting competition and restricting the cross-claimants’ commercial activities beyond the terms of their employment contracts. ”

23 There is then a further allegation of an abuse of process. The pleading of abuse of process is embarrassing in the technical sense of that term. The allegations are not confined to a pleading of material facts.

24 The proposed cross-claim then alleges that damages of $2,149,016 were suffered by reason, at least partly, of the defendants being restrained for the period of the injunction, and otherwise, arising from the actions of the cross-defendants.

25 The second proposed cross-claim seeks to join the same four parties who are currently parties to the proposed first cross-claim together with IceTV Holdings. The relief claimed in the proposed second cross-claim includes a declaration pursuant to s 1317E of the Corporations Act 2001 (Cth), that the first and third cross-defendants contravened ss 180(1), 181(1), 184(1), 184(2) and 184(3) of the Corporations Act. It also seeks penalty orders pursuant to s 1317G of the Corporations Act, a compensation order pursuant to s 1317H of the Corporations Act and, alternatively, equitable compensation for damages or criminal penalties. The defendants do not have standing to apply for a declaration pursuant to s 1317E for penalty orders, or for compensation orders under the Corporations Act (see s 1317J).

26 The pleading also seeks an order that the fourth and fifth cross-defendants, namely, the plaintiff and IceTV Holdings, discontinue the existing proceedings pursuant to s 223(1)(f) of the Corporations Act. That section deals with remedies for oppressive conduct. The proposed cross-claim contains descriptive allegations of oppression. For example, it is said that the first, second and third proposed cross-defendants have:

“ ... engaged in a programme of legal and commercial harassment ... intended to cause the cross-claimants financial damage, prevent them working [sic] in the industry in which the fourth and fifth cross-defendants operate, ... and to prevent the cross-claimants being employed by Mobilesoft Limited. ”

27 Again there is a failure to plead the material facts which are claimed to justify such conclusions.

28 There is a proposed allegation in para 18 that, in some unspecified way, the first to fourth cross-defendants defamed the cross-claimants. There is a claim that the cross-defendants “contravened” s 232 of the Corporations Act, that is, engaged in conduct that was oppressive to, unfairly prejudicial to, or unfairly discriminatory against the cross-claimants who are members of the plaintiff.

29 The defendants alleged that the proposed first, second and third cross-defendants breached their duties as directors under ss 180, 181 and 184 of the Corporations Act. The breaches are not properly particularised. Such breaches, if established, give rise to remedies to the plaintiff. I would accept that it could be open to the defendants in proceedings brought under s 232 of the Act to propound claims which the company might have against the proposed cross-defendants. I accept it is arguable (Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672; and Short v Crawley (No 30) [2007] NSWSC 1322 at [176]-[177]). However, the allegations of oppressive conduct are not properly pleaded or particularised and the proposed second cross-claim, if filed, would be liable to be struck out as embarrassing.

30 The parties to the proposed third cross-claim are the same as are the proposed cross-defendants to the first cross-claim. By the proposed third cross-claim the defendants seek to allege that, in various ways, the first cross-defendant, Mr O’Brien, and the fourth cross-defendant, the plaintiff, refused to supply Mobilesoft Australia Pty Limited (“Mobilesoft”) with an electronic program guide product if Mobilesoft used services supplied by the defendants.

31 It is alleged that the first, second and third proposed cross-defendants, namely, Colin O’Brien, Gai O’Brien and Roderick Mackay Sutherland, who are alleged to be directors of IceTV Holdings, contravened ss 45D(1), 45A(1), and 45DA(1) of the Trade Practices Act 1974 (Cth). This court does not have jurisdiction to deal with such claims. (See s 82 of the Trade Practices Act and s 4(1)(c) and (4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).)

32 It is also sought to be alleged that the cross-defendants contravened s 46(1) of the Trade Practices Act, that the plaintiff engaged in exclusive dealing in contravention of ss 47(2) and (3) of the Trade Practices Act and that the cross-defendants engaged in unconscionable conduct in contravention of s 51AC of the Trade Practices Act and s 43 of the Fair Trading Act 1987 (NSW). The allegations of breach of the Trade Practices Act are not properly pleaded or particularised. If a cross-claim were filed which included the allegations of breach of ss 46 and 47 of the Trade Practices Act the question would then necessarily arise as to whether the proceedings should be transferred to the Federal Court pursuant to s 6 Jurisdiction of Courts (Cross-vesting) Act. The defendants said in argument that, if this court did not have jurisdiction to entertain the Trade Practices Act claims, or if, by reason of bringing such claims, the proceedings, or part of them, would be transferred to the Federal Court, then they would not press that cross-claim. I will return to this question later.

33 The fourth proposed cross-claim, which also seeks damages of at least $2,149,016, declarations, penalty orders and compensation under ss 1317E, 1317G and 1317H of the Corporations Act (which the defendants have no standing to seek), is sought to be brought against Mr Sule Arnautovic and Mr Roderick Mackay Sutherland. It is alleged that they were appointed as joint administrators in Mobilesoft and Mobilesoft Limited on 21 August 2007, notwithstanding that they had a conflict of interest because Mr Sutherland is a director, secretary and shareholder in the plaintiff and IceTV Holdings.

34 It is sought to be alleged that the administrators did not properly carry out their duties as administrators of Mobilesoft, that they refused to discuss with the defendants proposals which the defendants sought to raise to allow the Mobilesoft companies to continue in business, that they misled creditors of Mobilesoft and acted in a way prejudicial to the interests of members and secured creditors of that company. It was also alleged that they contravened ss 42 and 43 of the Fair Trading Act, I assume, in relation to their communications with creditors or shareholders. It is alleged that the proposed cross-defendants breached their duties as officers of Mobilesoft and this caused damage to the defendants.

35 Whilst by no means a perfect example of a pleading, the pleading of the fourth cross-claim does not appear to suffer from as many defects as do the earlier proposed pleadings.

36 The principle in relation to the filing of cross-claims under s 22 of the Civil Procedure Act 2005 (NSW) is that the Court may grant to a defendant in the proceeding such relief against any person, whether or not a plaintiff, as it might grant against that person in separate proceedings commenced by the defendant for that purpose. However, if the claim is brought against a person who is not a plaintiff, relief may not be granted unless the relief “relates to, or is connected with, the subject of the first proceedings.” The connection between the proposed cross-claims and the claims brought by the plaintiff is not uniform. The claim proposed in the first cross-claim seeking relief against restraints of trade has a direct and obvious connection with the plaintiff’s claim. The further claim, if it is a claim, in relation to the period of employment and what is said to be the frustration of the employment contract is also, I gather, sought to be made against the plaintiff. However, that claim is not pleaded in any comprehensible way. The claim relating to the undertaking as to damages would also have a direct connection with the plaintiff’s suit. It is necessary for the plaintiff’s suit to proceed by way of pleadings. It is not clear to me whether or not the proposed first cross-claim is intended to plead a claim to enforce the undertaking. As I have said, the question of the enforcement of the undertaking will be adjourned to the trial judge. What appears to be an allegation of a tort of collateral abuse of process, which is made against persons other than the plaintiff, would, in my view, be capable of being brought by cross-claim if it were properly pleaded as it would relate to, and be connected with, the subject of the plaintiff’s proceedings. However, it is not properly pleaded.

37 The claims in the second cross-claim, for which the defendants do not have standing, plainly cannot be made. The claim for defamation would be liable to be struck out. The allegation of oppressive conduct, if it traverses the same ground as the intended claim for abuse of process, might also be capable of being brought by way of cross-claim, but it is not properly pleaded.

38 The claims for relief under the Trade Practices Act, insofar as they are within the jurisdiction of the court, are not properly pleaded, and it is not possible on the present pleadings to reach a view as to whether relief could be granted on them by way of cross-claim in accordance with the Civil Procedure Act.

39 It appears to me that the claims against Mr Sutherland and Mr Arnautovic in the proposed fourth cross-claim raise separate and discrete matters under the Corporations Act which ought not be brought by cross-claim in any event.

40 Leave to file a cross-claim is only required because the time limit for filing a cross-claim in the proceedings has expired. Leave is required under r 9.1 of the Uniform Civil Procedure Rules. I am prepared to extend the time for the defendants to file the cross-claim against the plaintiff in respect of the claims in paras 1-3 and 13-21 of the proposed first cross-claim.

41 It is also appropriate that the defendants’ claim to enforce the undertaking as to damages be particularised. That can be done by way of cross-claim. I would, therefore, also give leave to the defendants to file a cross-claim seeking the relief in paragraphs 5 and 6 and pleading the matters in paragraphs 32-38 and 42-48.

42 The deficiencies in the balance of the cross-claims are such that I am not prepared to extend the time for the filing of cross-claims by way of a blanket order. The plaintiff’s claim should be brought forward with such expedition as the court’s business allows. I understand from what I am told from the bar table that the parties should be ready to receive a hearing date for that claim within a few weeks. I will make orders for the filing and service of a statement of claim, defence and supplementary evidence from the plaintiff as to damages.

43 Even if a further cross-claim were filed in relation to the other alleged causes of action, such cross-claims would almost certainly not be determined at the same time as the plaintiff’s claim. If such further cross-claim can be properly formulated then it may be appropriate for leave to be given to ensure the proposed cross-defendants are bound by the determination of the proceedings between the plaintiff and the defendants. However, I am not prepared at this stage to give any wider leave than that which I have indicated. It will be a matter for the defendants whether they wish to seek leave to file such a further cross-claim against parties other than the plaintiff, or whether they wish to make an application to the Federal Court which might include Trade Practices Act claims which could not be entertained in this court.

[The parties addressed on costs.]

44 For these reasons, I make the following orders.

1. Direct that within seven days the plaintiff file and serve a statement of claim.
2. Direct that within a further fourteen days the defendants file and serve defences to the statement of claim.
3. Extend until 9 September 2008 the time for the defendants to file and serve a cross-claim against the plaintiff seeking the relief in paras 1, 2, 3, 5, 6, 13-21, 32-38 and 42-48 of the document entitled first cross-claim/cross-summons, which is annexure A to the notice of motion filed 20 May 2008.
4. Order that by 16 September 2008 the plaintiff file and serve any reply and defence to such cross-claim and serve any further affidavit evidence as to damages upon which they propose to rely.
5. Direct that any application for expedition should be filed and served by 9 September 2008 and I direct that any such application be returnable before the expedition Judge on 19 September 2008.
6. Order that the defendants’ application to enforce the plaintiff’s undertaking as to damages given on 28 May and 3 July 2007 be adjourned to the trial or further order.
7. Order that the notice of motion filed 20 August 2008 be dismissed.
8. Costs of the defendants’ notice of motion of 20 May 2008 be costs in the proceedings.

******