Linfox Transport (Aust) Pty Limited v Ellul - [2003] NSWSC 396

CITATION: Linfox Transport (Aust) Pty Limited v Ellul & Ors [2003] NSWSC 396

HEARING DATE(S): 02/05/03

JUDGMENT DATE:
13 May 2003

JUDGMENT OF: Shaw J

DECISION: (1) Appeal allowed; (2) Affirm the orders made by the Senior Deputy Registrar but vary order 2 to add: Except Steven Knight and the witness known as 'Max'; (3) I direct the plaintiff to produce to the defendant all audio and visual recordings relating to the witness 'Max' and produce the supply monitored agreement; (4) Costs should be costs in cause.

CATCHWORDS: Appeal - review of decision of Senior Deputy Registrar - whether plaintiff should provide or propose evidence from witnesses

LEGISLATION CITED: Supreme Court Rules 1970 (NSW) Part 1 r 3(1), Part 36 r 2, Part 52A r 9, Part 61 r 3, 5(3);

CASES CITED: Abram National Australia Bank Ltd (2001) NSWSC 916;
ASIC v Rich [2003] NSWSC 297;
Banque Commercial SA (in liq) v Akitial Holdings Pty Limited (1990) 169 CLR;
Equityloan Limited v Windy Dropdown Pty Limited (Unreported, NSWSC, Campbell J, 12/03/03);
Fiduciary Limited v Morning Star Research Pty Limited (2002) NSWSC 432;
Kyabram Property Investments Pty Ltd v Murray; Murray v Duddy (2003) NSWSC 286

PARTIES :
Linfox Transport (Aust) Pty Limited - Plaintiff
Phillip Ellul - First defendant
William Cassar - Second defendant
Diana Ellul - Third defendant

FILE NUMBER(S): SC 10540/01

COUNSEL: A Moses - Plaintiff
L Tyndale - Defendants

SOLICITORS: Corrs Chambers Westgarth - Plaintiff
Maurice Blackburn Cashman - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

13 May 2003
10540 of 2001

Linfox Transport (Aust) Pty Limited (Plaintiff)

v

Phillip Ellul (First defendant);

William Cassar (Second defendant);

and
Diana Ellul (Third defendant)

JUDGMENT

1 Shaw J: The plaintiff in these proceedings (Linfox) has filed a notice of motion seeking a review of the decision and orders made by Senior Deputy Registrar Whitehead (“the SDR”) on 16 September 2002 and affirmed on 26 February 2003.

2 What is sought is a review of the SDR’s orders pursuant to Part 61 r 3 of the Supreme Court Rules 1970 (“the rules”). As has been submitted by the plaintiff, and I do not take it to be in dispute, those rules allow such a review as a hearing de novo by a judge of this Court: see Abram v National Australia Bank Ltd [2001] NSWSC 916 per Taylor AJ.

3 The first difficulty the plaintiff has is that the rules provide that a notice of motion shall be filed within 28 days after the date of decision when a review of the Registrar’s decision is sought. There is, understandably, power in the Court to extend that period of time: see Part 61 r 3(3) and (5) of the Rules.

4 Apparently the plaintiff indicated in a timely way to the third defendant that it wished to challenge or review the decision of the SDR of 16 December 2002, and sought to do so by going back to that officer to…

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: [2003] NSWSC 396
Decision Date: 13 May 2003

CaseChat Overview and Summary

Linfox Transport (Aust) Pty Limited filed an appeal against the decision of the Senior Deputy Registrar, seeking a review of an order that required the plaintiff to provide or propose evidence from certain witnesses. The dispute arose from a legal action against Ellul, who was the defendant. The court was required to determine whether the Senior Deputy Registrar's order was lawful and whether it imposed an undue burden on the plaintiff by requiring them to produce specific evidence from certain witnesses.

The court examined the nature of the order and the circumstances under which it was made. It considered the legal principles governing the disclosure of evidence in litigation, the discretion of the Senior Deputy Registrar in making such orders, and the balance between the rights of the parties to a fair trial and the need to manage the proceedings efficiently. The court also assessed whether the order was disproportionate and whether there were alternative means of obtaining the necessary evidence without imposing such a specific requirement on the plaintiff.

In its decision, the court found that the Senior Deputy Registrar's order was not unlawful. The court reasoned that the Senior Deputy Registrar had the authority to direct the disclosure of evidence, and the order was made in the context of ensuring a fair trial. The court held that the order did not impose an undue burden on the plaintiff and was a reasonable exercise of the Senior Deputy Registrar's discretion. Consequently, the appeal was dismissed, and the order stood as made.

No specific orders were made in the appeal, as the court upheld the order of the Senior Deputy Registrar.

Orders