Weston v Publishing and Broadcasting Ltd

[2009] NSWSC 1235

CITATION:	Weston v Publishing and Broadcasting Ltd [2009] NSWSC 1235
HEARING DATE(S):	06/11/09
JUDGMENT DATE :	16 November 2009
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Order extending time for service of originating process.
CATCHWORDS:	PROCEDURE - time for service of originating process - application for extension - several earlier extensions - whether plaintiffs have shown good reason for further extension - extension granted
LEGISLATION CITED:	Corporations Act 2001 (Cth), s 588FF(1) Uniform Civil Procedure Rules 2005, rules 1.2, 6.2(4)(a), 12.11(1)(e)
CATEGORY:	Principal judgment
CASES CITED:	Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104 Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 Weston v Publishing and Broadcasting Ltd [2007] NSWSC 1318 Weston v Publishing and Broadcasting Limited [2009] NSWSC 321; (2009) 71 ACSR 577
PARTIES:	Paul Gerard Weston in his capacity as special purpose liquidator of One.Tel Limited - 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 2902/07
COUNSEL:	Mr N A Cotman SC/Mr R D Glasson - Plaintiff
SOLICITORS:	O'Neill Partners - Commercial Lawyers - Plaintiff

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

BARRETT J

MONDAY 16 NOVEMBER 2009

2902/07 PAUL GERARD WESTON v PUBLISHING AND BROADCASTING LIMITED & ORS

JUDGMENT

1 These proceedings were commenced by statement of claim filed on 25 May 2007.

2 The plaintiffs named in the statement of claim are Paul Gerard Weston, special purpose liquidator of One.Tel Limited, and One.Tel Limited itself. The relief sought is declaratory relief, an order for the payment of money pursuant to s 588FF(1) of the Corporations Act 2001 (Cth) and damages. There are eighteen defendants.

3 Under rule 6.2(4)(a) of the Uniform Civil Procedure Rules 2005, originating process in the Supreme Court is valid for service for six months after the date on which it is filed. Under rule 1.12, the court may extend any time fixed by the rules. That power has been exercised in this case on four separate occasions in relation to the time fixed by rule 6.2(4)(a). The time for service of the statement of claim was extended to 25 May 2008, then to 25 November 2008, then to 25 May 2009 and later to 25 November 2009.

4 I now have before me an application for a further extension of time, that is, until 25 May 2010.

5 I approach that application on the basis I stated as follows when the first of the earlier applications came before me (see Weston v Publishing and Broadcasting Ltd [2007] NSWSC 1318 at [2]):

“The decided cases make it clear that the court's discretion in this respect is broad and that the court need see no more than "good reason" to make the extension sought: see, for example, Buzzle Operations Pty Ltd v Breirl [2007] NSWSC 922, FAI Insurances Ltd v Mainprize [2006] NSWSC 554, Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597, Rich v Packer & Ors; Rich v Long & Ors [2007] NSWSC 1290 and Zhang v Semin [2007] NSWSC 229.”

6 The present position is that the special purpose liquidator is well advanced with negotiations to obtain litigation funding for the purposes of the proceedings. It is clear from the evidence that the continued unavailability of the judgment in the ASIC v Rich proceedings has caused that process to be delayed. It is understandable that a potential funder – and the special purpose liquidator himself – will wish to review the findings in that case in some detail before making a decision to proceed. This is because of a substantial overlap between issues of fact in that case and issues of fact in these proceedings.

7 Publication of the judgment in ASIC v Rich has implications also for another matter that must be taken into account on the present application. I refer to the question of prejudice to the defendants. They are aware of the proceedings. Indeed, they made an unsuccessful application for leave to be heard when the first application for extension of the time for service came before the court: see Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320. The defendants are also aware of the significance of the judgment in Asic v Rich. As was noted when the last application for extension of service was before the court (see Weston v Publishing and Broadcasting Limited [2009] NSWSC 321; (2009) 71 ACSR 577 at [15] and [16]), key defendants may be taken to have accepted that matters of controversy between the special purpose liquidator and those defendants can sensibly be left to await the outcome of ASIC v Rich.

8 There was discussion in Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 and Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104 about the weight that should, in cases such as the present, be afforded to a desire not to proceed until the outcome of some other proceeding is known or attempts to obtain litigation funding have been successful. As to the latter matter, the observation in the later case (at [82]) that it would be inappropriate to allow an extension of time for service “where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder” stands in contrast to the statement in the earlier case (at [107]) that “it would have been both imprudent and irresponsible for the claimants to institute the proceedings without having litigation funding in place” (the reference to institution of the proceedings was, in the context, a reference to service).

9 In my opinion the latter observation is apposite to this case and the continued delay while awaiting the ASIC v Rich decision – something that, in any event, can be said to have a measure of acquiescence from the defendants – is the appropriate and responsible course for the special purpose liquidator to take.

10 Good reason for a further extension of time for service has been shown. The extension of time sought will therefore be granted, as will the special purpose liquidator’s separate application in other proceedings for an enlargement of his functions to enable him to seek the extension of time. As noted in earlier judgments, the defendants’ ability to seek, if and when served, an order discharging the order extending time is assured by rule 12.11(1)(e).

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