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Weston v Publishing and Broadcasting Ltd

Weston v Publishing and Broadcasting Ltd

Case [2011] NSWSC 433 13 May 2011

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Hearing dates: 15 -18 February 2011
Decision date: 13 May 2011
Jurisdiction: Equity Division - Corporations List
Before: Ward J
Decision:
Applications to discharge orders extending time for service of Statement of Claim upheld. Proceedings dismissed.

Catchwords: CIVIL PROCEDURE - applications by defendants pursuant to Rule 12.11(1)(e) and/or 36.16(1) for discharge or setting aside of ex parte orders extending time for service of the Statement of Claim - application for dismissal or permanent stay of the proceedings - plaintiffs' application for leave pursuant to s 64 and/or 65 of the Civil Procedure Act 2005 (NSW) to amend the Statement of Claim
HELD - order pursuant to Rule 12.11(1)(e) that orders made ex parte on 16 November 2009 and 20 May 2010 extending the time for service of the Statement of Claim be discharged - proceedings dismissed - application to amend Statement of Claim dismissed
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Fair Trading Act 1989 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)
Supreme Court Rules 1970 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agricultural & Rural Finance v Kirk [2011] NSWCA 67
Agricultural and Rural Finance Pty Ltd v Atkinson [2010] NSWSC 42
Ahern v The Queen (1988) 165 CLR 87
Aktas v Adepta [2010] EWCA Civ 1170
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Arthur Young v Tieco International (1995) 182 LSJS 367
Associated Leisure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450
Australian Competition and Consumer Commission v CG Berbatis (2003) 214 CLR 51
Australian Competition and Consumer Commission v Radio Rentals Pty Ltd (2005) 146 FCR 292
Australian Croatian Cultural and Educational Society 'Braca Radici' Blacktown Ltd v Benkovic [1999] NSWCA 210
Australian Securities & Investments Commission v Rich [2009] NSWSC 1229
Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
Baker v The Queen [1975] 1 AC 774
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279
Bargan v State Government Insurance Office (Qld) (1982) 154 CLR 318
Barker & Ors v The Duke Group (in liq) [2005] SASC 81
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Battersby v Anglo-American Oil Co Ltd [1945] KB 23
Bayat v Lord Michael Cecil & ors [2011] EWCA Civ 135
Belan v Casey [2003] NSWSC 159
Bell Group Ltd & Ors v Westpac Banking Corporation & Ors (No 9) (2008) 70 ACSR 1
Birkett v James [1978] AC 297
Bishopsgate Insurance Australia Ltd (in liq) v…

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 Weston v Publishing and Broadcasting Ltd

Details

AGLC: Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Case: [2011] NSWSC 433
Decision Date: 13 May 2011

CaseChat Overview and Summary

In the matter of Weston versus Publishing and Broadcasting Ltd, the dispute arose from an ex parte application by the plaintiffs to extend the time for serving their Statement of Claim. The defendants subsequently sought to discharge the ex parte orders, arguing that the plaintiffs had failed to make a diligent effort to serve the Statement of Claim. The case was heard in the Supreme Court of New South Wales. The defendants also applied for a permanent stay of the proceedings and sought to dismiss the plaintiffs' application for leave to amend the Statement of Claim under the Civil Procedure Act 2005 (NSW).

The court considered whether the ex parte orders should be discharged and whether the proceedings should be permanently stayed. The defendants argued that the plaintiffs had not acted diligently in serving the Statement of Claim, and that the ex parte orders should be discharged as a result. The court also needed to determine whether the plaintiffs' application to amend the Statement of Claim should be granted, and whether the proceedings should be permanently stayed.

The court found that the ex parte orders extending the time for service of the Statement of Claim should be discharged, as the plaintiffs had not acted diligently. The court also dismissed the application to amend the Statement of Claim, stating that there was no basis to allow the amendment. The court found that the proceedings should be permanently stayed, as the plaintiffs had not taken reasonable steps to effect service. The court granted the defendants' application for a permanent stay and dismissed the proceedings.

The final orders of the court were that the ex parte orders made on 16 November 2009 and 20 May 2010 be discharged, the application to amend the Statement of Claim be dismissed, and the proceedings be permanently stayed. The court found that the defendants had established that the plaintiffs had not acted diligently in serving the Statement of Claim, and that there was no basis to allow the amendment. The court also found that the defendants' application for a permanent stay was well-founded, and that the proceedings should be dismissed.

Orders