Michael Wilson and Partners Limited v Robert Colin Nicholls

[2008] NSWSC 605

CITATION:	Michael Wilson and Partners Limited v Robert Colin Nicholls [2008] NSWSC 605
HEARING DATE(S):	6/06/08
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
EX TEMPORE JUDGMENT DATE:	6 June 2008
DECISION:	Orders made in accordance with application.
CATCHWORDS:	Rule in Harman's case - When subpoena materials may be made available in related overseas proceedings
CATEGORY:	Procedural and other rulings
PARTIES:	Michael Wilson & Partners (Plaintiff) Robert Colin Nicholls (First Defendant) David Ross Slater (Second Defendant) Temujin Services Limited (Third Defendant) Temujin International Limited (Fourth Defendant) Temujin International FZE (Fifth Defendant) Shaikenov & Partners, LLP (Sixth Defendant) Scoulton Holdings Limited (Seventh Defendant)
FILE NUMBER(S):	SC 50151/06
COUNSEL:	Mr M Walton SC (Plaintiff) Mr Hawkins (First Defendant to Fifth Defendants) Ms J E Richards (PJT Corporate Services, a non-party)
SOLICITORS:	Clayton Utz (Plaintiff) Henry Davis York (First to Fifth Defendants) Shand & Associates (PJT Corporate Services, a non-party)

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

Einstein J

Friday 6 June 2008 ex tempore
Revised 16 June 2008

50151/06 Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors

JUDGMENT

1 Over the past few weeks the Court has heard on several occasions applications by the plaintiff for similar orders. The initial application was pursued by notice of motion filed on 20 May 2008 and the circumstances which then obtained and the reasons for the orders of the Court granting leave to the plaintiff to use particular documents produced to the Court pursuant to a subpoena issued to PJT Corporate Services Pty Limited in relation to the receivership applications in the British Virgin Islands, are to be found in the judgment delivered on 23 May 2008 [2008] NSW SC 521.

2 It is unnecessary for present purposes to repeat, in terms of the balance of the matters still requiring to be determined today, what was set out in the 23 May judgment, including the statements of principle generally and qua the care with which the Court requires to treat, where outside persons or corporations respond to a subpoena regularly issued and are entitled to the benefit of the implied Harman in undertaking, absent very special circumstances.

3 The position in so far as the 20 May 2008 notice of motion is concerned, and in so far as Mr Brian Weir is concerned, was later the subject of a further development, when Mr Weir had been able to be communicated with.

4 This situation was addressed when Clayton Utz, on 28 May, sent Mr Weir a letter by email informing him of the position with respect to the notice of motion and it having been stood over to 30 May 2008 in the motions list Clayton Utz then received an email from Mr Weir indicating that he would raise no objection to the plaintiff’s application.

5 Hence, following that circumstance on or about 30 May 2008, the order sought in the notice of motion of 20 May 2008 against Mr Weir was made. That left only, in so far as that original notice of motion was concerned, the continued and continued unsuccessful attempts of the plaintiff, to persuade the Court that the principled exercise of its discretion was to permit for use in the British Virgin Islands, the materials produced to the Court on subpoena by Ms Lighezzolo, in relation to the subpoena of 10 April 2008.

6 Before dealing with Ms Lighezzolo generally and her position in relation to the original notice of motion, it is appropriate to refer to the amended notice of motion filed by the plaintiff on 30 May 2008, which sought leave to use documents produced in the Court pursuant to the same three parties, but now in the United Kingdom arbitration proceedings between the plaintiff and Mr John Forster Emmett and ancillary proceedings before the High Court of England and Wales involving Mr Emmett, Eagle Point Investments and Yahoo UK Limited.

7 Up to this point in time the plaintiff has not been successful in obtaining any of those orders.

8 Mr Hawkins, solicitor, has on a previous occasion and again today, sought to submit that consistently with the principles identified in the judgment delivered by the Court on 23 May, the plaintiff has not been in a position to show the necessary special circumstances to permit the making of the orders now sought by the plaintiff.

9 That matter was dealt with in terms of the material principles, particularly in paragraph 10, 11 and 12 of the judgment of 23 May 2008.

10 Whilst statements of principle affirm that the discretion is a broad one and all of the circumstances of the case must be examined, I am entirely satisfied that the plaintiff has shown, what has been referred to as special circumstances, for the purposes of justifying its present application.

11 A number of affidavits have been read by the plaintiff in these proceedings on previous occasions and there has been additional affidavit evidence adduced this morning.

12 The affidavit of Ms Donohoe of 27 May 2008, has dealt with MWP’s United Kingdom arbitration proceedings, in particular in paragraphs 8 and 9. The commonality of the United Kingdom arbitration proceedings with the British Virgin Island proceedings is apparent from at least paragraphs 8 and 9 of Ms Donohoe’s 27 May 2008 affidavit.

13 On a previous occasion in hearing the same motion or motions, the very detailed evidence given by Mr Wang in his two affidavits, each of 22 April 2008, has been drawn to the Court’s attention.

14 The real question for present purposes before the Court arises by reason of the fact that neither Ms Lighezzolo nor the company of which she is, on the evidence, sole director, namely PJT Corporate Services, have attended in order to be heard on the remaining parameters of the instant applications.

15 On a previous occasion, indeed the occasion when the orders were made on 23 May 2008, Ms Richards of counsel addressed the Court, albeit PJT Corporate Services not being a party to the motion, opposing the proposed orders on behalf of PJT Corporate Services.

16 I have some difficulty not presently having before me at this moment the transcript of argument which took place on 23 May 2008, in recalling exactly what was the position taken by Ms Richards in addressing the Court. It may be that she, on that occasion, indicated that whilst she was appearing, she had not been able to obtain direct instructions and was simply opposing the application in what she imagined may be the client’s best interests, against the event that the client may wish to oppose the application.

17 Even in that regard, Ms Richards was given an opportunity to address and addressed a number of arguments in opposing the application, arguably, as I have said, in an uninstructed fashion and arguably, as I have said, for more abundant precaution.

18 None of those arguments found favour with the Court in relation to that entity, PJT. Hence the order was made granting the plaintiff the leave it sought, but in relation to PJT Corporate Services only.

19 The judgment made clear that whereas the two named individuals had not had an opportunity to appear and to address arguments opposing the proposed orders, PJT had had that opportunity.

20 The judgment also referred to the prima facie entitlement of parties who would be affected by the application, being permitted to address in relation to the position, even if not strictly joined as a matter of fact as parties to the application.

21 Since that time the Court is in receipt of firm information from Shand & Associates in terms of an affidavit of Fiona Campbell Shand sworn on 30 May 2008, which is before the Court on these motions. That affidavit treated with that firm’s inability to contact Ms Lighezzolo and steps which had been taken in that endeavour, and dealt with information and belief, from Ms Lighezzolo, that she and her daughter had a return ticket to Australia which would bring them back to Australia on the morning of Thursday 5 June 2008.

22 Other developments now before the Court in the form of Ms Donohoe’s affidavit of 6 June 2008 and in the form of some evidence given by Ms Donohoe this morning in the witness box, record that on 3 June Clayton Utz sent a letter by email to the two email addresses which they had for Ms Lighezzolo and which are referred to in paragraph 4 of Ms Donohoe’s 6 June affidavit.

23 That letter and those emails referred to the notice of motion of 20 May 2008 and to the orders already made permitting the plaintiff leave to use the documents produced by Mr Weir in the BVI receivership applications, a copy of that order was enclosed.

24 The letter also advised that I had stood the plaintiff’s amended notice of motion over until today and a copy of the amended notice of motion was included, together with certain affidavits.

25 The letter also made plain that I had not made an order granting the plaintiff leave to use the documents produced pursuant to subpoena of 10 April 2008 issued to Ms Lighezzolo in the BVI proceedings because they had been unable to bring their client’s notice of motion to her attention.

26 The letter went on to say that Clayton Utz understood that Ms Lighezzolo was returning to Australia on 5 June 2008 and intended to ask the Court that in addition to hearing their client’s amended notice of motion dated 30 May 2008 today, the Court should also consider making the orders granting leave to use the documents produced under subpoena by Ms Lighezzolo in the BVI proceedings.

27 Ms Donohoe’s evidence was also that at about 3.45 pm yesterday, she phoned Ms Lighezzolo’s mobile telephone number and the call was diverted to an automatic message bank and she left a message saying words to the following effect, “This is Kate Donohoe calling from Clayton Utz. We act for Michael Wilson & Partners in Supreme Court proceedings. I am calling in relation to two notices of motion which our client has previously forwarded to your home and email address in relation to the use of the documents you’ve produced in answer to a subpoena. Today we sent you an email attaching a letter which stated as follows” and she then read out the contents of the letter on the telephone.

28 She also deposes that at about 3.55 on the same day she called Ms Lighezzolo home number and as no-one answered, she left a message to the same effect, reading out the contents of the letter.

29 There is also annexed to Ms Donohoe’s 6 June affidavit, the letters which were sent to Henry Davis York, the solicitors for the first to fifth defendants, on 3 June 2008 and the letter which was sent to Shand & Associates on 3 June 2008.

30 In the same affidavit Ms Donohoe included a copy of a letter sent to Henry Davis York on 5 June 2008 setting out their instructions in relation to the status of the BVI receivership applications, which generally makes clear that the matter had been before the Court and Charles J had indicated that she was about to deliver judgment on the receivership application, but that Charles J [in the British Virgin Islands] had ordered that MWP be allowed to adduce further evidence. The current timetable was that that further evidence had to be provided by 4.30 pm today.

31 When Ms Donohoe gave evidence from the witness box this morning she gave evidence of a telephone call, when she phoned the home address of Ms Lighezzolo this morning and spoke to Ms Lighezzolo’s mother, who informed Ms Donohoe that her daughter had been in hospital and was now home and was very sick and that information is now also before the Court.

32 The Court currently face the circumstance that Ms Lighezzolo, who, as I have said, is the only director of PJT, clearly has had an opportunity, one way or another over some little time now, to appreciate that attempts had been made to have her address the Court.

33 Notably, there has been today, no evidence at all called from Shand & Associates in terms of any recent events involving that firm and Ms Lighezzolo or Ms Lighezzolo’s mother.

34 It seems that it is not impossible to pass a message through to Ms Lighezzolo’s mother and there is no information in any evidentiary form put forward today by Ms Richards [who was first at the Bar Table indicating that she was not appearing but simply here to make clear that her instructing solicitors had not been able to contact Ms Lighezzolo].

35 That was not put on affidavit and the Court is simply informed from the Bar Table by a barrister who presumably is instructed by a solicitor behind her, to pass on some information to the Court.

36 One has to go back to recall the significance to the plaintiff of the receivership applications which are being pursued in the various jurisdictions and to recall, and this is treated with generally in some real detail in the major judgment delivered on 23 May 2008, the general parameters of the nature of the proceedings which the plaintiff is about.

37 The principle which was expressed in my judgment of 23 May 2008 in terms of the cautious approach taken by Gyles J, which I there followed, and of the significance of the implied Harman undertaking being honoured, which must of course, yield in some circumstances to the particular situation as the Court finds it.

38 The Court is entitled by now in these proceedings, to infer that a conscious effort has been made by Ms Lighezzolo to fail to give any instructions to her solicitors and to fail to otherwise communicate what her position is, qua herself or PJT.

39 The significance of Supreme Court proceedings is obvious. The fact is that the plaintiff in terms of its situation today, can have no possible idea how long Ms Lighezzolo may be indisposed, nor what her indisposition is, nor what her health difficulties may be, nor why she is unable to even communicate to the solicitors who have appeared, at least in her and her company’s interests, what the position is.

40 At the same time, the Court cannot be blinded to the fact that there is evidence before the Court again today that on the current timetable in place in the BVI the further evidence which is to be permitted by MWP requires to be served today.

41 In short, the Court has no way of knowing whether, if for example, the Court were to relist this matter on a later occasion, Ms Lighezzolo or anyone to appear for her or on her behalf, would be likely to be present.

42 The Court cannot lose control of an application by a circumstance in which a respondent to an application is simply not before the Court in any way, shape or form.

43 It does seem to me to be a very unusual situation where the position in this Courtroom, 12A, right now, is that one has a solicitor who is not at the Bar Table, who has briefed in the past Ms Shand on behalf of PJT, silent in every respect.

44 The principled exercise of the discretion in the circumstances which obtain is clearly, it seems to me, now at this stage, after so many attempts by the plaintiff to involve Ms Lighezzolo in some form of representation to properly argue the question of whether or not the plaintiff’s application should be acceded to, to grant the plaintiff’s application.

45 The Court has bent over backwards in the several notices of motion to continue to give as much opportunity as has been practicable in the urgent circumstances to Ms Lighezzolo and her company to come forward. In the absence of any response or any properly reasoned response from Ms Lighezzolo or her company through her own solicitors or counsel who have been before the Court, the circumstances bespeak the principled exercise of the discretion being to make the relevant orders now sought.

46 The orders of the Court are:

In proceedings no 50151 of 2006 the Court makes an order in terms of paragraph 2(c) of the orders sought in the plaintiff’s notice of motion of 20 May 2008.

The Court further, in the same proceedings, makes the orders sought by the plaintiff in its notice of motion of 30 May 2008 in terms of the three orders sought in paragraph 1.

I order that these orders be entered forthwith.

The further order of the Court is that the first to fifth defendants pay the plaintiff’s costs of today and in relation to the previous occasions when these motions have been before the Court, otherwise costs remain reserved.
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