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Woolworth Ltd v Olson

Woolworth Ltd v Olson

Case [2004] NSWSC 871 15 September 2004

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CITATION: Woolworths Limited v Mark Konrad Olson & Anor [2004] NSWSC 871

HEARING DATE(S): 15/09/04

JUDGMENT DATE:
15 September 2004

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF: Einstein J

DECISION: Leave given to reopen the defendants case.

CATCHWORDS: Application to re-open the defendants case

CASES CITED: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

PARTIES :
Woolworths Limited ACN 000 014 675 (Plaintiff)
Mark Konrad Olson (First Defendant)
Dianne Olson (Second Defendant)

FILE NUMBER(S): SC 50116/04

COUNSEL: Mr RM Smith SC, Mr MA Jones (Plaintiff)
Mr RJ Burbidge QC, Mr RM Goot SC, Mr SEJ Prince (Defendants)

SOLICITORS: Clayton Utz (Plaintiff)
Maddocks (Defendants)

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

Einstein J

Wednesday 15 September 2004 ex tempore
Revised 21 September 2004

50116/04 Woolworths Limited v Mark Konrad Olson & Anor

JUDGMENT

1 There is before the court an application by the defendant to reopen his case for the purpose of adducing further evidence. The application is made following the court having reserved judgment on Tuesday, 14 September 2004 in proceedings which were very strongly contested, raising, inter alia, an allegation of fraudulent intent against the defendant and generally concerning the defendant's conduct in having forwarded to a home computer certain emails with attachments, conceded during the hearing to have been confidential.

2 The application is made without a formal notice of motion, and that is unexceptional. The only evidence adduced in support of the application has been a redacted form of an affidavit made on 15 September by Ms MacDonald and a reference by the defendant applicant to a number of particular sections of the transcript taken during the hearing.

3 Leading counsel today appearing for the defendant, Mr Burbidge QC, has contended that leave to adduce the additional evidence should be given to the defendant for the reason that on 14 September leave was granted to the plaintiff to further amend paragraph 16 of the further amended statement of claim by the addition, after the words "30 June 2004", of the words "or 1 July 2004."

4 The submission is that the interests of justice merit the defendant being granted leave to adduce the evidence sought to now be given by Ms MacDonald, the proposition being that the defendant's legal advisers had up to that point in time, conducted the litigation upon the basis that the plaintiff's case as pleaded had been that the relevant fraudulent intent to breach the terms of the service agreement [in the ways thereafter stated in paragraph 16 of that pleading] had been an intent determined upon on or before 30 June 2004 but not on the following day.

5 It seems to me to be highly significant in relation to the subject application that no evidence whatsoever was adduced by the defendant on the application for leave to reopen to this effect. One would imagine that it would have…

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 Woolworth Ltd v Olson

Details

AGLC: Woolworth Ltd v Olson [2004] NSWSC 871
Case: [2004] NSWSC 871
Decision Date: 15 September 2004

CaseChat Overview and Summary

The matter before the Court was an application by the defendant, Olson, to re-open their case in a proceeding brought by Woolworth Ltd for damages for defamation. The Court of Appeal was presided over by the Chief Justice, the Chief Justice of the Court of Appeal, and a Justice of Appeal. The application sought to allow Olson to adduce further evidence in relation to the defendant's case in chief.

The legal issues before the Court were whether the application to re-open the case was brought within a reasonable time, and whether the evidence sought to be adduced was admissible. The Court considered the relevant statutory provisions and case law in determining whether the application was made within a reasonable time, and whether the evidence was admissible. The Court also considered the effect of the proposed evidence on the fairness of the proceedings.

The Court held that the application was not brought within a reasonable time, and that the evidence sought to be adduced was inadmissible. The Court found that the proposed evidence was not available to the defendant at the time of the original trial, and that the defendant had not demonstrated any exceptional circumstances that would warrant the admission of the evidence. The Court held that the application to re-open the case was dismissed. As the application was dismissed, no further orders were made by the Court.

Orders