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Sykes v Richardson

Sykes v Richardson

Case [2007] NSWSC 418 1 May 2007

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Breach of Contract

Fiduciary Duty

Civil Litigation & Procedure

International Trade Law

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Reported Decision:
70 NSWLR 66

New South Wales

Supreme Court

CITATION: Sykes v Richardson [2007] NSWSC 418

HEARING DATE(S): 24/04/07; 26/04/07; 27/04/07; 1/05/07

JUDGMENT DATE :
1 May 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Ruling of law in accordance with par [25].

CATCHWORDS: PRACTICE & PROCEDURE: - Evidence on commission - sought for civil proceedings in US seeking damages for conspiracy to manipulate prices - treble damages sought - conduct alleged an offence under Sherman Act (US) - whether proceedings "relating to the commission of an offence or an alleged offence" - s32(2) Evidence on Commission Act (NSW) - whether examination a step in enforcement of US penal law.

LEGISLATION CITED: Evidence on Commission Act 1995
Sherman Antitrust Act 1890 (US)
Evidence Act 1995
Interpretation Act 1987
Australian Industries Preservation Act 1906-1950 (C'th)
Evidence (Proceedings in Other Jurisdictions) Act 1975

CASES CITED: Lionsgate Australia v Macquarie Private Portfolio [2007] NSWSC 318
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
John Robinson & Company Ltd v Ferguson Transformers Pty Ltd (1972-73) 129 CLR 65
In re Norway's Application (Nos. 1 & 2) [1990] 1AC 723
Gredd v Arpad Busson [2003] EWHC 3001
British American Tobacco Aust Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483
Attorney General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
Huntington v Attrill [1893] AC 150
Schnabel & Ors v Lui & Ors [2002] NSWSC 15

PARTIES: Kieran Sykes (applicant)
Julius N Richardson (respondent/plaintiff)

FILE NUMBER(S): SC 2007/11499

COUNSEL: M J Leeming SC with K M Richardson (applicant)
Dr A S Bell SC with K C Morgan (respondent/ plaintiff)

SOLICITORS: Atanaskovic Hartnell (applicant)
Ebsworth & Ebsworth Lawyers (respondent/ plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday 1 May 2007

2007/11499 Kieran Sykes v Julius N Richardson
JUDGMENT

1 HIS HONOUR: The respondent to the present motion, Julius N Richardson, is counsel for the plaintiffs in civil proceedings for damages in the United States District Court for the Western District of Wisconsin. On 22 March 2007 he filed a summons in this Court seeking an order, under s33 of the Evidence on Commission Act 1995 (NSW), for the examination of a witness, Ms Kieran Sykes, for the purpose of those proceedings. Ms Sykes is the applicant in the motion.

2 On 29 March 2007 Patten AJ made the order, ex parte, together with certain ancillary orders. Accordingly, a subpoena was issued to the applicant to attend for examination. That examination was to take place on Monday, 30 April, but the parties accepted that it could not proceed on that day. However, the trial in Wisconsin is to commence on 29 May and a pre-trial conference has been fixed for 24 May. If the examination is to proceed, it must be conducted before that conference.

3 The motion before me seeks, among other things, that the order of Patten AJ…

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.

Continue reading Sykes v Richardson

Details

AGLC: Sykes v Richardson [2007] NSWSC 418
Case: [2007] NSWSC 418
Decision Date: 1 May 2007

CaseChat Overview and Summary

The case of Sykes v Richardson was heard in the Supreme Court of New South Wales, involving a dispute over the admissibility of evidence obtained through a commission in the United States. The plaintiff, Sykes, sought damages for an alleged conspiracy to manipulate prices, with treble damages pursuant to the Sherman Act in the United States. The defendant, Richardson, objected to the use of the evidence obtained from the commission on the grounds that it was sought for civil proceedings in the US, and that the enforcement of US penal law was involved.

The central legal issue before the court was whether the proceedings in the United States were "relating to the commission of an offence or an alleged offence" within the meaning of section 32(2) of the Evidence on Commission Act (NSW). The court had to determine if the examination of the defendant was a step in the enforcement of US penal law, which would render the evidence inadmissible under the Act. The court considered the nature of the proceedings in the US, the relevance of the evidence to the proceedings in Australia, and whether the evidence was sought for civil or penal purposes.

The court held that the proceedings in the United States were indeed relating to the commission of an offence, as the treble damages sought were pursuant to the Sherman Act, which is a penal statute. The court further found that the evidence was sought for penal purposes in the US, and that the examination of the defendant was a step in the enforcement of US penal law. Consequently, the evidence obtained through the commission was deemed inadmissible under section 32(2) of the Evidence on Commission Act (NSW).

As a result, the court ruled that the defendant's objection to the admissibility of the evidence was upheld, and the evidence obtained through the commission was not admissible in the proceedings in Australia. This decision highlights the importance of considering the nature of proceedings and the purpose for which evidence is sought when determining its admissibility under the Evidence on Commission Act (NSW).

Orders