Weston v Publishing and Broadcasting Ltd - [2010] NSWSC 499

CITATION: Weston v Publishing and Broadcasting Ltd [2010] NSWSC 499

HEARING DATE(S): 14/05/10

JUDGMENT DATE :
20 May 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order extending time for service.

CATCHWORDS: PROCEDURE - service of initiating process - extension of time for service - no matter of principle

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
rules 1.12
12.11(1)(e)

CATEGORY: Principal judgment

CASES CITED: Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 498
Weston v Publishing and Broadcasting Ltd [2009] NSWSC 1235

PARTIES:
Paul Gerard Weston in his capacity as special purpose liquidator of One.Tel Limited - First Plaintiff
One.Tel Limited - Second Plaintiff
Publishing and Broadcasting Limited - First Defendant
Consolidated Press Holdings Limited - Second Defendant
Robbdoc Pty Limited - Third Defendant
Toranaga Pty Limited - Fourth Defendant
Cavalane Holdings Pty Limited - Fifth Defendant
News Limited - Sixth Defendant
Leteno Pty Limited - Seventh Defendant
James Douglas Packer - Eighth Defendant
Peter Wilson Yates - Ninth Defendant
Lachlan Keith Murdoch - Tenth Defendant
Peter John Macourt - Eleventh Defendant
Kevin Beck - Twelfth Defendant
Mark Alan Silbermann - Thirteenth Defendant
Peter David Howell-Davies - Fourteenth Defendant
Pirjo Hannele Kekalainen-Torvinen - Fifteenth Defendant
Persons named in Schedule A trading as Freehills who are named in Schedule A to the Statement of Claim filed on 25 May 2007 - Sixteenth Defendant
Persons named in Schedule B trading as Ernst & Young who are named in Schedule B to the Statement of Claim filed on 25 May 2007
Persons named in Schedule C trading as Ferrier Hodgson who are named in Schedule C to the Statement of Claim filed on 25 May 2007 - Eighteenth Defendant

FILE NUMBER(S): SC 2007/255083

COUNSEL: Mr N A Cotman SC/Mr R D Glasson - Plaintiffs

SOLICITORS: O'Neill Partners Commercial Lawyers - Plaintiffs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY 20 MAY 2010

2007/255083 PAUL GERARD WESTON (in his capacity as special purpose liquidator of ONE.TEL LTD) v PUBLISHING AND BROADCASTING LTD

JUDGMENT

1 The special purpose liquidator of One.Tel Limited applies under rule 1.12 of the Uniform Civil Procedure Rules 2005 for yet another extension of the time within which originating process in these proceedings is valid for service. This is the sixth such application (see Weston v Publishing and Broadcasting Ltd [2009] NSWSC 1235).

2 On this occasion, the extension sought is for three months, being to 25 August 2010.

3 Had circumstances remained today as they were when I considered – and, with some hesitation, granted – the last application in November 2009, this present application would have been refused.

4 However, the matters referred to in my reasons of today in Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 498 represent a major step forward and make it clear that the special purpose liquidator will be in a position to effect service soon, albeit with a need for some necessary matters to be attended to over a…

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 [2010] NSWSC 499
Case: [2010] NSWSC 499
Decision Date: 20 May 2010

CaseChat Overview and Summary

The plaintiff, Weston, brought an action against the defendant, Publishing and Broadcasting Ltd, in the Supreme Court of New South Wales. The dispute centred on the defendant's alleged breach of copyright in relation to certain musical works. The plaintiff sought damages for the unauthorised use of these works. The defendant argued that the claim was statute-barred due to the limitation period under the Copyright Act 1968 (Cth). The court was tasked with determining whether the plaintiff's application for an extension of time to serve the statement of claim was permissible.

The primary legal issue before the court was whether the plaintiff's application for an extension of time to serve the statement of claim was justified under the relevant procedural rules. The court had to consider the principles governing extensions of time and the circumstances in which such extensions might be granted. The court also needed to assess whether the defendant had been prejudiced by any delay in service and whether there were any exceptional circumstances that warranted the extension.

The court held that the application for an extension of time was not a matter of principle but rather a matter for the court's discretion. It found that the plaintiff had demonstrated sufficient grounds for the delay in serving the statement of claim, and that the defendant had not been prejudiced by the delay. The court emphasised the importance of balancing the rights of the parties and the need to ensure that proceedings were not unnecessarily hindered by procedural technicalities. The court granted the plaintiff's application for an extension of time, allowing the proceedings to continue.

The court ordered that the plaintiff's application for an extension of time to serve the statement of claim was granted. The plaintiff was permitted to serve the statement of claim within the extended time frame specified by the court. The proceedings were thus allowed to proceed to the next stage, where the substantive issues of copyright infringement and damages could be addressed.

Orders