Rich v Packer; Rich v Long

[2007] NSWSC 1290

CITATION:	Rich v Packer & Ors; Rich v Long & Ors [2007] NSWSC 1290
HEARING DATE(S):	12/11/07
JUDGMENT DATE :	12 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	12 November 2007
DECISION:	Time for service of originating process extended
CATCHWORDS:	PROCEDURE - time for service of originating process - extension of time - matters relevant to decision to extend time
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, rules 1.12, 6.2(4)(a)
CASES CITED:	Buzzle Operations Pty Ltd v Breirl [2007] NSWSC 922 FAI Insurances Ltd v Mainprize [2006] NSWSC 554 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Zhang v Semin [2007] NSWSC 229
PARTIES:	(1) John David Rich - First Plaintiff Lifecell Pty Limited - Second Plaintiff Kalara Investments Pty Limited - Third Plaintiff Geravale Holdings Pty Limited - Fourth Plaintiff James Douglas Packer - First Defendant Peter Wilson Yates - Second Defendant Publishing and Broadcasting Limited - Third Defendant Consolidated Press Holdings Limited - Fourth Defendant Lachlan Keith Murdoch - Fifth Defendant Peter Macourt - Sixth Defendant News Limited - Seventh Defendant One.Tel Limited - Eighth Defendant Steven John Sherman - Ninth Defendant Andrew Arthur Pike, John Thomas Nestel and the parties in the Schedule to the Amended Statement of Claim trading as Freehills (2) John David Rich - First Plaintiff Lifecell Pty Limited - Second Plaintiff Kalara Investments Pty Limited - Third Plaintiff Geravale Holdings Pty Limited - Fourth Plaintiff Brian James Long and the persons referred to in Schedule B to the statement of claim trading as Ernst & Young - First Defendant
FILE NUMBER(S):	SC (1) 2756/07; (2) 2921/07
COUNSEL:	Mr D.L. Williams SC - Plaintiffs
SOLICITORS:	Thompson Eslick - Plaintiffs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 12 NOVEMBER 2007

2756/07 JOHN DAVID RICH & 3 ORS v JAMES DOUGLAS PACKER & 9 ORS
2921/07 JOHN DAVID RICH & 3 ORS v BRIAN JAMES LONG & 83 ORS

JUDGMENT

1 In each of proceedings 2756/07 and 2921/07, four plaintiffs, who are the same in each case, sue different defendants. There is in each proceeding an application under rule 1.12 of the Uniform Civil Procedure Rules 2005 for an extension of the time prescribed by rule 6.2(4)(a) as the time for which originating process is valid for service.

2 The plaintiffs in each case are Mr J. D. Rich and interests associated with him. The defendants in 2756/07 are Publishing and Broadcasting Limited, News Limited and others. The defendants in 2921/07 are the partners of Ernst & Young. In each case a statement of claim or an amended statement of claim was filed on 28 May 2007, with the result that the period of six months for which originating process is valid for service under rule 6.2(4)(a) will expire on or about 28 November 2007.

3 The plaintiffs in each case seek an extension of the time for which the originating process is valid for service so that the time will expire 12 months after the filing on 28 May 2008.

4 The grounds upon which these applications are advanced are set out in an affidavit sworn by Mr Thompson, the plaintiff's solicitor. Four matters in particular are emphasised. First, there is reference to extensive factual enquiry about matters relevant to each proceeding has been made in separate proceedings instituted by the Australian Securities and Investments Commission and heard over a very substantial period by Austin J, with final submissions taking place on 21 August 2007 after about 232 hearing days. It is apprehended that his Honour's decision in those proceedings and factual findings he makes may well shape the course of each of the proceedings now before me and have a substantial influence on the way each of those proceedings is conducted. This indicates the desirability of allowing scope for the present proceedings to remain on foot but in a state of some suspension pending delivery of judgment by Austin J.

5 The second matter to which reference is made is that each of the proceedings now before me will be a long and complex case and the special purpose liquidator of One.Tel is said to be proposing to pursue a case which, it appears, may substantially cover similar ground. There will be a question for consideration at the relevant time whether the two proceedings instituted by Mr Rich and the proceeding instituted by the special purpose liquidator should proceed separately or whether one might be subsumed in or overtaken by the other or whether both might be progressed and heard together. Again, that is something that will more sensibly be considered in the future.

6 The third matter to which reference is made is that, if service occurs now, costs – and potentially very substantial costs – on both sides are likely to be incurred as ordinary processes take their course. That situation will be deferred if the extension of time is granted.

7 The fourth matter to which my attention is directed is that, particularly in light of the result in the proceedings which were heard by Austin J and further progress of the proceedings instituted by the special purpose liquidator, there may in due course be some clarification making it possible for Mr Rich to consider whether it is appropriate to seek to conduct settlement negotiations.

8 I have been referred to cases on the approach to be taken under the relevant provision of the rules, including FAI Insurances Ltd v Mainprize [2006] NSWSC 554, Zhang v Semin [2007] NSWSC 229, Buzzle Operations Pty Ltd v Breirl [2007] NSWSC 922 and Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597. They make it clear that the discretion of the court is broad and that, in order to extend time, the court needs only to see some “good reason” for doing so.

9 In my opinion, the four matters to which I have referred constitute “good reason” in this case, bearing in mind the overriding purpose of the rules of civil procedure to ensure that matters are dealt with expeditiously and inexpensively, yet consistently with the requirements of justice.

10 In each proceeding, I make orders 2, 3 and 4 in the notice of motion.

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