Watson v Conolly - [2008] NSWSC 872

CITATION: WATSON v CONOLLY [2008] NSWSC 872

HEARING DATE(S): 4 August 2008

JUDGMENT DATE :
26 August 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Leave to the plaintiff to amend the statement of claim to delete the causes of action pleaded against the defendants in relation to the alleged failure to advise the plaintiff in respect of third party claims by the company in liquidation. Leave to the plaintiff to access and utilise documents in the present proceedings that were produced under subpoena in proceedings brought by him against insurer.

CATCHWORDS: PROCEDURE – Application for leave to amend statement of claim – sought to delete part of pleadings – amendments in question held separable - Application to rely on subpoenaed documents produced by defendants in different proceedings – documents totalling 350 folders – cost effective to allow access to existing documents

LEGISLATION CITED: Civil Procedure Act 2005
Corporations Act 2001 (Cth)

CASES CITED: BL & GY v Hypec Electronics [2004] NSWSC 1119
Clough v Frog (1974) 4 ALR 615
Horton v Jones (No 2) (1939) 39 SR (NSW) 305

PARTIES: David Patrick WATSON v
Alan Robert CONOLLY & ORS

FILE NUMBER(S): SC No 20096 of 2007

COUNSEL: P: D J Fagan SC
D: S D Robb QC

SOLICITORS: P: Etheringtons
D: Middletons

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

TUESDAY 26 AUGUST 2008

No 2007/20096

DAVID PATRICK WATSON v ALAN ROBERT CONOLLY & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff, by notice of motion filed on 28 May 2008, seeks leave to file and serve an amended statement of claim in the form annexed to the notice of motion. The proposed amendments involve the deletion of paragraphs that formulate specific claims of negligence.

2 In addition, the plaintiff seeks an order for leave to rely in the present proceedings upon documents produced to the Court by the defendants in answer to a subpoena issued at the request of Allianz Australia Insurance Limited in proceedings in this Court, No 50143 of 2005.

3 The first of the two orders is the primary matter in dispute. It will be necessary to refer to the background circumstances leading to the present proceedings and to the causes of action pleaded in the statement of claim.

Background circumstances

4 The plaintiff’s application was supported by the affidavit of Victor Michael Dominello of Etheringtons, solicitors for the plaintiff, sworn 6 June 2008. Mr Dominello set out in summary form the background to the proceedings.

5 The plaintiff is a chartered accountant and has held registration as an Official Liquidator, Registered Company Auditor and Trustee in Bankruptcy. He has practised as a chartered accountant for approximately 20 years and has acted in relation to a number of liquidations since that time.

6 On 7 May 2001, the plaintiff was appointed Official Liquidator of Hypec Electronics Pty Limited (in Liquidation) (“Hypec”).

7 At all material times, there were two directors and shareholders of Hypec, namely, Colin Mead…

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 Watson v Conolly

Details

AGLC: Watson v Conolly [2008] NSWSC 872
Case: [2008] NSWSC 872
Decision Date: 26 August 2008

CaseChat Overview and Summary

In Watson v Conolly, the applicant sought leave to amend his statement of claim to delete certain parts of his pleadings. The case was heard in the Federal Court of Australia. The dispute centred around the admissibility and relevance of the amended pleadings and whether the applicant could rely on documents that were subpoenaed in different proceedings.

The legal issues that the court had to address included whether the amendments sought were separable from the rest of the pleadings and if the applicant could be allowed to rely on documents produced by the defendants in other proceedings. The court had to consider the procedural fairness and the practicality of allowing the applicant to access the subpoenaed documents, which totalled 350 folders, to ensure the case could proceed in a cost-effective manner.

The court held that the amendments were separable, allowing the applicant to proceed with the changes to the pleadings without affecting the integrity of the remaining parts. It was determined that it was cost-effective and procedurally fair to allow the applicant to access the subpoenaed documents produced by the defendants in the other proceedings, thereby facilitating the ongoing litigation.

The final orders of the court permitted the applicant to amend the statement of claim by deleting the specified parts and to rely on the subpoenaed documents for the purposes of the current proceedings.

Orders