Telstra Ltd v Sulaiman (No 2)

[2024] NSWSC 441

Supreme Court

New South Wales

Medium Neutral Citation:

Telstra Ltd v Sulaiman (No 2) [2024] NSWSC 441

Hearing dates:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

(1) Note that His Honour’s Associate will contact the parties on Monday 22 April 2024 with available dates for a hearing of the plaintiff’s case in chief; once the hearing date is known, stand over the defendants’ Notices of Motion filed 1 and 5 February 2024 to that date; (2) Note that, once a date for such hearing is set, the Court will make directions for: (a) the defendants to file and serve a Commercial List Response in which they will, if so advised, assert an entitlement to rely on the privilege against self-incrimination and, in that event, not be required to admit or deny the allegations in the Commercial List Statement; (b) the plaintiff to serve its evidence in chief and to give discovery; (3) Note that if the defendants, in their List Response, invoke reliance on the privilege against self-incrimination: (a) the defendants will not, prior to the hearing of the plaintiff’s case in chief, be required to serve any evidence or give discovery; (b) the defendants will be required, at the conclusion of the plaintiff’s case in chief, to inform the Court whether they wish to make an application under UCPR r 29.9 that the plaintiff’s case be dismissed or whether, rather, they wish to adduce evidence in response to the plaintiff’s case; (c) the Court will then consider what steps should be taken in relation to the defendants’ Notices of Motion of 1 and 5 February 2024 and in relation to the fixing for hearing the balance of the proceedings; (4) Costs of today of the defendants’ Notices of Motion filed 1 and 5 February 2024 are costs in the cause

Catchwords:

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to the defendants – whether defendants may be permitted to decline to admit or deny allegations in the Commercial List Statement

Legislation Cited:

Crimes Act 1900 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Telstra Ltd v Sulaiman [2024] NSWSC 440

Texts Cited:

Practice Note SC EQ 3

Category:

Procedural rulings

Parties:

Telstra Limited (Plaintiff)
Qarttullah Sulaiman (First Defendant)
Azatullah Sulaiman (Second Defendant)
Khalida Sulaiman (Third Defendant)

Representation:

Counsel:
C Tam (Plaintiff)
C Parkin (First Defendant)
H Donaldson (Second and Third Defendants)

Solicitors:
King & Wood Mallesons (Plaintiff)
Cambridge Law (First Defendant)
Republic Lawyers (Second and Third Defendants)

File Number(s):

2023/448786

EX TEMPORE JUDGMENT (REVISED)

1. The background to these proceedings is set out in the judgment that I gave a moment ago. ^[1]

   1. Telstra Ltd v Sulaiman [2024] NSWSC 440.

2. At or around the time these proceedings were commenced, criminal proceedings were commenced against each of the defendants.

3. Each of the defendants is charged with offences under the Crimes Act 1900 (NSW). Each is charged with dishonestly gaining a financial advantage by reason of the conduct alleged by the plaintiff in these proceedings.

4. I am informed that those proceedings are pending in the Local Court, that it is likely by June this year there will be a committal hearing in relation to those proceedings, and that, if the defendants are committed, they will face trial most likely in the District Court. The present indication is that those trials will not take place before June of next year.

5. In these proceedings each of the defendants seeks a stay of these proceedings pending the outcome of those criminal proceedings.

6. The plaintiff, obviously, wishes these proceedings to continue so far as is reasonably practicable in those circumstances.

7. In the course of argument, I suggested that the way forward be to, notwithstanding the pendency of the criminal proceedings:

1. direct that the defendants file and serve a Commercial List Response but note that the defendants may assert in that Commercial List Response an entitlement to rely on the privilege against self-incrimination; and

2. permit the defendants, in those circumstances, to decline to admit or deny the allegations made in the plaintiff’s Commercial List Statement (notwithstanding the usual obligations of a defendant as set out in the Commercial List Practice note). ^[2]

   2. Practice Note SC EQ 3 at [10]-[11].

8. I have suggested that thereafter I direct that the plaintiff serve its evidence in-chief and give disclosure in the usual way but that, by reason of the pendency of the criminal proceedings, the defendants not yet be required to either give disclosure or to serve evidence.

9. I suggested that thereafter the Court allocate a hearing date for the hearing of the plaintiff’s case in chief on the basis that at the conclusion of that case the defendants be obliged to notify the Court whether they wish to make an application under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 29.9 that the plaintiff’s case be dismissed, or alternatively whether they would need to go into evidence to meet the plaintiff’s case.

10. I have indicated to the parties that the Court looks likely to be in a position to allocate such a hearing date in the next few months.

11. Mr Tam, who appears for the plaintiff, very properly has sought instructions as to whether the plaintiff agrees to this proposal, and he is not in a position to say that the plaintiff does so agree. Mr Parkin for the first defendant, and Ms Donaldson for the second and third defendants, indicated that the defendants are content to proceed on this basis.

12. My conclusion is that that is the most satisfactory way that the matter should proceed.

13. If, at the end of the plaintiff’s case in chief, it emerges that the defendants do consider that to meet the plaintiff’s case they will need to go into evidence, the question of whether a date should then be fixed for the hearing of the defendants’ case in response to the plaintiff’s case can be reconsidered in the light of the current state of the criminal proceedings.

14. In those circumstances, I make the following directions and notations:

1. Note that my Associate will contact the parties on Monday 22 April 2024 with available dates for a hearing of the plaintiff’s case in chief. Once the hearing date is known, I will stand over the defendants’ Notices of Motion filed 1 and 5 February 2024 to that date.

2. Note that, once a date for such hearing is set, the Court will make directions for:

1. the defendants to file and serve a Commercial List Response in which they will, if so advised, assert an entitlement to rely on the privilege against self-incrimination and, in that event, not be required to admit or deny the allegations in the Commercial List Statement;

2. the plaintiff to serve its evidence in chief and to give discovery.

3. Note that if the defendants, in their List Response, invoke reliance on the privilege against self-incrimination:

1. the defendants will not, prior to the hearing of the plaintiff’s case in chief, be required to serve any evidence or give discovery;

2. the defendants will be required, at the conclusion of the plaintiff’s case in chief, to inform the Court whether they wish to make an application under UCPR r 29.9 that the plaintiff’s case be dismissed or whether, rather, they wish to adduce evidence in response to the plaintiff’s case;

3. the Court will then consider what steps should be taken in relation to the defendants’ Notices of Motion of 1 and 5 February 2024 and in relation to the fixing for hearing the balance of the proceedings.

4. Costs of today of the defendants’ Notices of Motion filed 1 and 5 February 2024 are costs in the cause.

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Endnotes