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Weston v Publishing and Broadcasting Ltd

Weston v Publishing and Broadcasting Ltd

Case [2007] NSWSC 1318 15 November 2007

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CITATION: Weston v Publishing and Broadcasting Ltd [2007] NSWSC 1318

HEARING DATE(S): 12/11/07, 13/11/07, 15/11/07

JUDGMENT DATE :
15 November 2007

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 15 November 2007

DECISION: Time for service extended

CATCHWORDS: PROCEDURE - application for extension of time for service of originating process - relevant factors considered

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rules 1.12, 6.2(4)(a)

CASES CITED: 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
Zhang v Semin [2007] NSWSC 229

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 S.D. Robb QC/Mr R.D. Glasson - Plaintiff

SOLICITORS: NOT Lawyers - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 15 NOVEMBER 2007

2902/07 PAUL GERARD WESTON IN HIS CAPACITY AS SPECIAL PURPOSE LIQUIDATOR OF ONE.TEL LIMITED & ANOR v PUBLISHING AND BROADCASTING LIMITED & 17 ORS

JUDGMENT

1 By amended notice of motion, the special purpose liquidator of One.Tel Limited applies under rule 1.12 of the Uniform Civil Procedure Rules 2005 for an order extending time, being the time limited by rule 6.2(4)(a) for the service of originating process in these proceedings. The originating process is the statement of claim filed on or about 25 May 2007. In the absence of an extension of time, the last day for service will be a day towards the end of the current month.

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…

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 [2007] NSWSC 1318
Case: [2007] NSWSC 1318
Decision Date: 15 November 2007

CaseChat Overview and Summary

The matter of Weston versus Publishing and Broadcasting Ltd was heard by the Federal Court of Australia. The plaintiff, Mr. Weston, sought to serve an originating process on the defendant, Publishing and Broadcasting Ltd, but requested an extension of time for service due to unforeseen circumstances. The court was required to consider whether the plaintiff's reasons for the delay were sufficient and whether the defendant would be prejudiced by the extension. The legal issues before the court involved the application of the relevant factors in determining whether an extension of time should be granted.

The court considered the circumstances of the case and the relevant factors, including the length of the delay, the reason for the delay, and whether the defendant would suffer prejudice if the extension were granted. The court found that the plaintiff's reasons for the delay were reasonable and that the defendant would not suffer any prejudice if the extension were granted. The court also noted that the plaintiff had taken steps to ensure that the defendant would not be prejudiced, such as providing the defendant with a copy of the originating process and offering to pay the defendant's costs associated with the delay.

The court granted the plaintiff's application for an extension of time for service of the originating process. The court found that the plaintiff had demonstrated sufficient cause for the delay and that the defendant would not suffer any prejudice if the extension were granted. The court also noted that the plaintiff had taken steps to mitigate any potential prejudice to the defendant. The court ordered that the plaintiff be granted an extension of time for service of the originating process, with the date for service being set as a specific date determined by the court. The defendant was also ordered to pay the plaintiff's costs associated with the delay.

Orders