Thomas v SMP (International) Pty Ltd - [2010] NSWSC 822

CITATION: Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 July 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 26 July 2010

DECISION: See judgment

CATCHWORDS: AFFIDAVITS - prolix - oppressive - irrelevant and excessive detail - AFFIDAVITS - evidence in chief - inappropriate in particular circumstances - contentious oral communications - lack of utility and unfairness - oral evidence ordered - BARRISTERS - duty to court - to control bulk of evidence - to restrain clients - to limit waste of time and money

CATEGORY: Procedural and other rulings

TEXTS CITED: Access to Justice Report, Final Report (HMSO) 1996
Griffiths, Civil Litigation in the Nineties (1991) 57(3) Arbitration 168
A H Engelbach, Anecdotes of Bench & Bar, 1913
J D Heydon, Reciprocal Duties of Bench & Bar, (2007) 81 ALJ 23
New South Wales Law Reform Commission, Working Paper 14 (1975) - Procedure: Common Law Pleadings
A Emmett, Practical Litigation in the Federal Court of Australia - Affidavits (2001) 20 Australian Bar Review 28
R C Teece, The Law & Conduct of the Legal Profession in New South Wales, (Law Book Co, Sydney, 1963) 2nd ed

PARTIES: Eric Clyde Thomas
SMP (International) Pty Ltd

FILE NUMBER(S): SC 2003/00085446

COUNSEL: P E King - for second plaintiff
W Carney - for third defendant
R J Weber SC with I R Pike - for fourth defendant
F Kalyk - for fifth defendant

SOLICITORS: Hayes Partners - for second plaintiff
Husseini Lawyers - for third defendant
Moray & Agnew - for fourth defendant
Bartier Perry - for fifth defendant

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

MONDAY 26 JULY 2010

2003/85446 – ERIC CLYDE THOMAS v SMP (INTERNATIONAL) PTY LTD

EX TEMPORE JUDGMENT
Introduction

1 HIS HONOUR: In these proceedings the protagonists are Mr Sullivan, Mr Thomas and Mr Willett and to a lesser extent Mrs Willett. Mr Willett is an accountant. A relationship of trust and confidence is alleged to have existed between Mr Sullivan and Mr Thomas on the one hand and Mr Willett on the other hand.

2 Mr Sullivan, Mr Thomas and their company (the third plaintiff, Softsand Design Investments Pty Ltd), made investments and advanced loans in property and related transactions recommended by Mr Willett. Those investments and loans included transactions in connection with SMP International Pty Ltd and other companies connected with it. SMP is a company that designs manufactures and distributes surfing and ski equipment, clothing and apparel.

3 An issue has arisen concerning the form of the evidence-in-chief that I should permit during the hearing. Having regard to the particular facts and circumstances applicable in this case, I have reached certain conclusions about what is appropriate. I will first explain the structure of the pleaded case.

The Pleading – Primary Facts

4 The second further amended statement of…

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.

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Details

Case: [2010] NSWSC 822
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case of Thomas v SMP (International) Pty Ltd involved a dispute between the plaintiff, Thomas, and the defendant, SMP (International) Pty Ltd, regarding an alleged breach of contract. The matter was heard in the Supreme Court of New South Wales. The central issue in the case was the admissibility of extensive and detailed affidavits provided by both parties, which were deemed to contain excessive and irrelevant information. The court had to decide whether these affidavits could be relied upon as evidence in the proceedings.

The primary legal issue before the court was whether the affidavits presented by both parties were appropriate and relevant in the context of the dispute. The court considered the nature of the evidence provided, including the level of detail and relevance to the issues at hand. The court also evaluated whether the extensive oral evidence proposed by the parties would be beneficial or would merely waste time and resources. Additionally, the court examined the role of the barristers in controlling the volume of evidence and ensuring that the proceedings were conducted efficiently and effectively.

The court found that the affidavits submitted by both parties contained excessive and irrelevant detail, which was oppressive and inappropriate. The court held that such extensive evidence was not necessary and would lead to a waste of time and resources. The court ordered that the contentious oral communications should not proceed as they lacked utility and would be unfair to the opposing party. The court emphasised the duty of the barristers to control the bulk of evidence presented by their clients and to limit the waste of time and money in the proceedings. The court's reasoning was based on the need to maintain efficiency and fairness in the legal process.

As a result, the court ordered that the proposed oral evidence be struck out and that the parties be required to focus on the pertinent issues in the case. The final orders included directions for the parties to file more concise and relevant affidavits, ensuring that the evidence presented was directly related to the issues in dispute. The court also directed the parties to avoid unnecessary detail and to focus on the core matters at hand to ensure a more efficient and effective legal process.

Orders