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Weston v Publishing and Broadcasting Ltd

Weston v Publishing and Broadcasting Ltd

Case [2009] NSWSC 321 24 April 2009

Limitation Periods

Appeal

Extension of Time

Civil Litigation & Procedure

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Reported Decision:
71 ACSR 577

New South Wales

Supreme Court

CITATION: Weston v Publishing and Broadcasting Limited [2009] NSWSC 321

HEARING DATE(S): 24/04/09

JUDGMENT DATE :
24 April 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Time for service extended

CATCHWORDS: PROCEDURE - time for service of initiating process - application for extension - several earlier extensions - whether plaintiff has shown good reason to extend - whether relevant prejudice to defendants - appropriateness of ex parte application confirmed - need for direction that defendant be informed of rights under the rules questioned - extension granted

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 588FF(1), 588FF(3)
Uniform Civil Procedure Rules 2005, rules 1.1(2), 6.2(4)(a), 12.11(1)(e), 12.11(2)

CATEGORY: Principal judgment

CASES CITED: Hoddinott v Persimmon Homes [2008] 1 WLR 806
Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB)
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1320
Rich v Long [2008] NSWSC 487
Simpson v Saskatchewan Government Insurance Office (1967) 65 DLR (2d) 324
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 55 ALJR 243
Verdich v McKechnie [1981] TasR 91
Weston v Publishing and Broadcasting Ltd [2007] NSWSC 1318

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: NOT Lawyers - Plaintiff

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

BARRETT J

FRIDAY, 24 APRIL 2009

2902/07 PAUL GERARD WESTON v PUBLISHING AND BROADCASTING LIMITED & 18 ORS

JUDGMENT

1 I made an order this morning extending the time limited by rule 6.2(4)(a) of the Uniform Civil Procedure Rules 2005 for the service of originating process in these proceedings. I indicated that I would publish brief reasons later in the day, as I now do.

2 The order extending time was made under rule 1.12 on the ex parte application of Mr Weston,…

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 [2009] NSWSC 321
Case: [2009] NSWSC 321
Decision Date: 24 April 2009

CaseChat Overview and Summary

The case of Weston v Publishing and Broadcasting Ltd involved a plaintiff seeking an extension of time for service of initiating process. The plaintiff, Weston, had already been granted several extensions, and the defendants, Publishing and Broadcasting Ltd, opposed further extensions on the grounds that there had been no good reason shown and that they would be prejudiced. The matter was considered by the court on an ex parte basis, and the plaintiff sought a further extension. The court had to determine whether the plaintiff had demonstrated good reason to extend the time for service, whether the defendants would be prejudiced by the extension, and whether it was appropriate to grant the extension on an ex parte basis. The court also questioned whether it was necessary to direct that the defendants be informed of their rights under the rules.

The court considered the plaintiff's reasons for the extension and whether they were sufficient to warrant a further extension. The court also examined the potential prejudice to the defendants if the extension was granted. In considering the appropriateness of the ex parte application, the court noted that it had previously confirmed the appropriateness of such applications in similar circumstances. However, the court also questioned whether it was necessary to direct that the defendants be informed of their rights under the rules, as this had not been done in previous cases.

The court ultimately found that the plaintiff had demonstrated good reason for the extension and that the defendants would not be prejudiced if the extension was granted. The court also confirmed that it was appropriate to grant the extension on an ex parte basis. The court noted that while it was not necessary to direct that the defendants be informed of their rights under the rules, it was important to ensure that the defendants were aware of the application and had an opportunity to be heard if they wished. The court granted the extension, with directions that the defendants be informed of the application and given an opportunity to be heard if they wished.

The final orders of the court were that the plaintiff be granted a further extension of time for service of initiating process, with directions that the defendants be informed of the application and given an opportunity to be heard if they wished. The court also noted that if the defendants wished to be heard, they should file and serve their submissions within a specified time. The court's decision provides guidance on the factors to be considered when granting extensions of time for service of initiating process, and the importance of ensuring that defendants are aware of applications and have an opportunity to be heard if they wish.

Orders