Oswal v Yara Australia Pty Ltd - [2011] WASC 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: OSWAL -v- YARA AUSTRALIA PTY LTD [2011] WASC 76

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 22 MARCH 2011

FILE NO/S: CIV 3078 of 2010

BETWEEN: RADHIKA OSWAL
Plaintiff
AND
YARA AUSTRALIA PTY LTD
First Defendant
PANKAJ OSWAL
Second Defendant
BURRUP HOLDINGS LIMITED
Third Defendant
TOR HOLBA
VINOJIT AMBALAVANER
Fourth Defendants
(BY ORIGINAL ACTION)
YARA AUSTRALIA PTY LTD
Plaintiff
AND
RADHIKA OSWAL
First Defendant
PANKAJ OSWAL
Second Defendant
BURRUP HOLDINGS LIMITED
Third Defendant
TOR HOLBA
VINOJIT AMBALAVANER
Fourth Defendants
BURRUP FERTILISERS PTY LTD (RECEIVERS AND MANAGERS APPOINTED)
Fifth Defendant
RAMESH SODUM
Sixth Defendant
(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Case management - Court's practice directions - Strategic Conference - Application to excuse personal attendance by two parties - Turns on own facts

Legislation:

Nil

Result:

Plaintiff not excused
Second Defendant may participate by video link

Category: B

Representation:

Original Action

Counsel:

Plaintiff:    No appearance
First Defendant  :    No appearance
Second Defendant  :    No appearance
Third Defendant  :    No appearance
Firstnamed Fourth Defendant    :    No appearance
Secondnamed Fourth Defendant     :      No appearance
Solicitors:
Plaintiff:    Norton Rose Australia
First Defendant  :    Clayton Utz
Second Defendant  :    Maxim Litigation Consultants
Third Defendant  :    Blake Dawson
Firstnamed Fourth Defendant    :    Gadens Lawyers
Secondnamed Fourth Defendant     :      In person

Counterclaim

Counsel:

Plaintiff:    No appearance
First Defendant  :    No appearance
Second Defendant  :    No appearance
Third Defendant  :    No appearance
Firstnamed Fourth Defendant    :    No appearance
Secondnamed Fourth Defendant     :      No appearance
Fifth Defendant  :    No appearance
Sixth Defendant  :    No appearance
Solicitors:
Plaintiff:    Clayton Utz
First Defendant  :    Norton Rose Australia
Second Defendant  :    Maxim Litigation Consultants
Third Defendant  :    Blake Dawson
Firstnamed Fourth Defendant    :    Gadens Lawyers
Secondnamed Fourth Defendant     :      In person
Fifth Defendant  :    Freehills
Sixth Defendant  :    No appearance

Case(s) referred to in judgment(s):

Nil

KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 22 March 2011 and has been edited from the transcript.)

Each of the plaintiff (Mrs Oswal) and the second defendant (Mr Oswal) have sought to be excused from personal attendance at a strategic conference which has been set down before me in this matter in the CMC List this Friday 25 March 2011 at 10.00 am.
The application by Mrs Oswal is under a minute of proposed orders of 16 March 2011, that is last Wednesday, pursuant to which it is proposed that she seeks orders in these terms, namely:
(1)Order 4 of the orders by Justice K Martin of 17 February 2011 be varied so that the plaintiff be permitted to attend the strategic conference to be held on 25 March 2011 via video conference or via telephone conference.
(2)In the alternative to Order 1, the requirement that the plaintiff attend the strategic conference be dispensed with.
Mr Oswal by communication through his solicitors seeks similar orders, as communicated to the court last Friday, that is 18 March 2011.
Those applications as I have said were made on the papers last week and the parties have provided me, helpfully, with written submissions and affidavit materials and, in the case of the first defendant and the plaintiff by counterclaim, that is Yara Australia Pty Ltd, opposing the applications by Mr and Mrs Oswal to be excused from personal attendance or to attend in the alternative.
I should for the record simply identify the materials that have been provided. First, the evidentiary materials on behalf of Mrs Oswal constitute two affidavits both by Ms Jennifer Mary Hill and both sworn 18 March 2011, the first of which contains within it an affidavit affirmed by Mrs Oswal the previous day, that is 17 March. There is, as I have said, also Ms Hill's second affidavit. I also received an affidavit in respect of Mr Pankaj Oswal's application. That affidavit is sworn by Mr Ivan Armeli on 18 March, that is Friday of last week. In respect of Yara's position, I received a fifth affidavit of Ms Gabrielle Holly affirmed on 21 March 2011, that is yesterday, and finally, a further affidavit of Ms Lauree Danielle Coci, also sworn yesterday, which simply annexes a copy of the relevant share sale agreement, which is one of the critical agreements in this matter.
As I said, I have received the written submissions on behalf of Mrs Oswal through her solicitors of 18 March, and the written submissions of Yara of yesterday. I have also received brief submission letters through solicitors in respect of the firstnamed fourth defendant, that is Mr Holba, through his solicitors Gadens, yesterday, and a communication on behalf of the fifth defendant by counterclaim, that is Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed), through Freehills, also yesterday. In the case of Mr Holba and Burrup Fertilisers, they also join Yara in opposing the relief which is sought.
The matter at the end of the day is about a strategic conference which is an exercise in case management and the relevant principles of proportionality apply. The present exercise in some ways has a capacity to overtake the importance of the case management function which is actually being performed or sought to be performed on Friday. Because of that it is important that I state my reasons - but I will do so in brief truncated point form so that they can be better understood and are not disproportionate to the overall exercise.
In the first place I will state my conclusion and then I will give the reasons for it.
First, in my assessment Mrs Oswal, as the plaintiff in these proceedings, should not be excused from personal attendance at the strategic conference this Friday. Second, Mr Oswal as second defendant both to the action and the counterclaim should participate, but in his case, participation via a video link arrangement with the court will be sufficient.
Briefly summarised in point form, the reasons for my conclusions are as follows:
(i)Within this action the positions of the plaintiff, Mrs Oswal, and her husband, the second defendant, are distinct and therefore, for that very reason, need to be evaluated individually and distinctly.
(ii)The relevant consolidated practice direction of the Supreme Court, Consolidated Practice Direction [4.1.2] at par 11 is explicit. It says in terms, 'The case manager will ordinarily direct that the parties will be required to attend'.
(iii)On 17 February 2011, at the last directions hearing before me, I drew the parties' specific attention to the practice direction in regards to the requirements of the strategic conference as part of the court's revised practice directions and I then made a direction (number 4) at the time in these terms:
The matter be listed for a Strategic Conference, to be convened (in accordance with Consolidated Practice Direction 4.1.2 paragraphs 9 ‑ 16) between all parties and their legal representatives, on Friday 25 March 2011.
(iv)As a result, by Friday 25 March, all the parties will have had approximately six weeks to make relevant travel and preparation arrangements necessary concerning an attendance. That is more than enough time to put arrangements in train to attend, and it would seem Yara's representatives who are travelling from overseas have been able to accomplish this.
(v)The relevant applications to be excused, or for permission to attend via video or telephone link, were only received by the court and myself last week.
(vi)The explanations or rationalisations provided by Mrs Oswal, as plaintiff and the initiator of these proceedings, do not in my view support her being excused from a personal attendance or indeed to permit her to attend by video link. As the party that has instituted these proceedings, and who is now responsible for a significantly altered amended statement of claim filed on 3 March 2011, her personal attendance in my view is of paramount importance.
(vii)Mrs Oswal's explanations concerning potential travel difficulties in reaching Perth from the Middle East, where she seems to be now located, in order to personally attend a strategic conference this looming Friday, are not in my assessment convincing. The material filed before me shows that commercial flights (via, for instance, Emirates) are indeed available so as to reach Perth via Dubai. Furthermore, the option of private air transport would not appear to have been addressed as a potential option towards Mrs Oswal's attendance.
(viii)Mrs Oswal's explanation concerning her elder daughter needing supervision by her whilst she is out of boarding school from India on an out of term break, is also not in my view persuasive. There is no reason why family members or indeed a nanny or nannies would not be capable of addressing short term supervision responsibilities concerning Mrs Oswal's daughter or daughters.
(ix)Another matter proffered by way of excuse concerns Mrs Oswal's fears about the potential conduct of the Australian Taxation Office taking steps to prevent her from departing the jurisdiction of Australia by reason of a recent tax assessment issued against her. Such considerations in my view are wholly irrelevant and extraneous to these proceedings.
(x)Where all parties agree that personal attendance of one party at a strategic conference be excused, that would provide a significant consideration. In the present case, however, both Yara, the firstnamed fourth defendant (Mr Holba) and the fifth defendant by counterclaim, all firmly oppose Mrs Oswal being excused from personal attendance at the strategic conference this Friday.
(xi)Mrs Oswal commenced these proceedings on Christmas Eve 2010 as an invocation of the court's process. A person who seeks the advantages of utilising the court's processes as a litigant must also accept the normal responsibilities associated with such a privilege. In the present case, that extends to compliance with the court's practice directions concerning an important aspect of case management in relation to a matter running in the CMC List of this Court.
(xii)It would seem that Mrs Oswal finds herself absent from Western Australia as a matter of personal choice. Therefore, any difficulties or inconveniences posed to her by need to personally attend as a plaintiff at a strategic conference held in accordance with the practice and procedures of the Supreme Court, in my view are largely difficulties of her own making - predicated upon her decision to take up residence outside Western Australia.
(xiii)As regards Mr Pankaj Oswal, he is, as I have observed, in a somewhat different position to that of his wife. He is the second defendant in the proceedings and the second defendant to Yara's counterclaim. In the scheme of things, his strategic importance to the litigation is of somewhat less moment. I have assessed the significance of these matters as regards both Mrs Oswal and Mr Oswal by reference to the plaintiff's amended statement of claim of 3 March 2011 and Yara's amended substituted defence and counterclaim of 17 March this year.
(xiv)Mr Oswal seeks that he be excused from personal attendance, alternatively that he attend via video link or by telephone at the strategic conference. The reason proffered, essentially, is that he will be travelling overseas on business at the relevant time this Friday. The explanation proffered for Mr Oswal's non‑attendance is far from overwhelming, but in the circumstances I am persuaded that given his relative significance in the litigation, there is just enough to persuade me that an attendance via a video link would suffice for the purposes of appropriate participation in the strategic conference this Friday 25 March.
Those are my summarised bullet point reasons for concluding in the terms that I have indicated.
My orders will be in these terms:
(1)Mrs Oswal's application to be excused from personal attendance, alternatively to attend via a different medium, is refused.
(2)Mr Oswal's application to attend via a video link is in order and allowed for this Friday 25 March 2011.
(3)The costs of all applications will be in the cause.