MARGARITIS and ORS v AGC (ADVANCES) LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 23 September 1991 [1991] NSWCA 189 Mahoney JA This case comes before the Court initially upon an application described as an application that the time for the instituting of an appeal from the orders made by consent by Rogers CJ in Comm Div on 15 August 1988 be extended. The purpose of the extension is to allow procedures to be brought, as it has emerged, by way of application for leave to appeal, so as to have set aside the judgment given by Rogers CJ in Comm Div on 15 August 1988. It is not necessary for me to detail all of the bases on which the matter has been raised by the claimants. It is sufficient to say that a judgment was given by Rogers CJ in Comm Div on 15 August 1988, by consent, in a proceeding in which Westpac Banking Corporation and AGC (Advances) Ltd, the second and first opponents in the present proceeding, claimed to be entitled to sums from the three claimants upon a foreign currency borrowing. The substance of the matter is that the claimants now say that it has only recently, within the matter of the past few weeks, come to their knowledge that there were documents in the possession of the opponents and, in particular, the second opponent which, had they known of them, would have influenced them not to consent to the judgments in question or, at least - I put one of the other variations of the position - may well have influenced them not to consent to that judgment. It is proposed to contest this matter by means of a procedure by way of appeal. The documents in question, that is the detail of them, are not presently known to the claimants. Their case is essentially that they have come to know of them as a result of the judgment given by Foster J in a proceeding in the Federal Court of Australia. The opponents have refused to make the documents available to the claimants, but the claimants suggest that they know sufficient of them to provide at least prima facie support for the present application. It will no doubt - I do not desire to pre-empt the proceedings to be brought - probably be necessary for there to be first an application for extension of time for the making of an application for leave to appeal against the judgment of August 1988, and then an application for leave to appeal against that judgment in accordance with the provisions of the Supreme Court Act; some proceedings of this type will be necessary. This matter came before the Court this morning in the course of the ordinary motion list. The Court has now had tendered to it on behalf of the claimants six affidavits, some of them lengthy, in support of the present application. It has been indicated on behalf of one or other of the opponents, and perhaps both, that there may well be cross-examination, both of the solicitor for the claimants and of one or more of the claimants in relation to some of the material set forth in the affidavits. Various estimates have been given of the time likely to be taken by the 2 UNREPORTED JUDGMENTS hearing of this matter but the Court may, properly I think, take the view that the time will be significant and longer than would be appropriate for a matter to be dealt with in the ordinary motion list. The appropriate course in my opinion is that the proceedings should be stood over to a date to be fixed by the Registrar. The Registrar should fix the proceeding having regard to the real possibility that the case may, on one view of it, take a day to be disposed of. In my opinion the claimants should, in the meantime, have leave to amend the present motion and should be at liberty to file an application for leave to appeal, or other appropriate application pertinent to these proceedings, so as to put the procedural matters in the proper form. Mr Libling, on behalf of the claimants, has pointed to the possibility - perhaps the probability - that there will, in due course, be a serious contest between the parties as to whether the opponents are to produce the documents that are in question. He has referred to the provisions of the Supreme Court Act and the Rules and has suggested that some procedure should be evolved in order that delay can be avoided at the time when the proceeding comes before the Court upon a date fixed for the hearing of it. In my opinion, if and insofar as it should be necessary, the claimants should have leave to issue a subpoena or deliver a notice to produce to the other parties in relation to the documents that are in question. It may well be anticipated, in view of what has been said before the Court today, that the opponents will not voluntarily produce the documents in question. I do not wish in any way to pre-empt their decision but I deal with the matter as a matter of possibility. Mr Libling has pointed to the procedure which is available under the Rules to the following effect: namely, that when a date for hearing has been fixed in respect of the matter and documents have been subpoenaed or notices to produce have been given, the Court may grant leave to the parties subpoenaing them or claiming the documents, to inspect the documents prior to the date for hearing. This rule is obviously advantageous in a procedural sense in that it will avoid the expenditure of unnecessary time in the hearing. He has raised the possibility that the Court may, at the present time, grant such an order so that inspection may be had prior to the date to be fixed for hearing. I do not think that it is appropriate for the Court to attempt to grant any such leave at the present time. When the date for hearing has been fixed the Registrar will, no doubt, have regard to the fact that there may be a contested application of the kind to which I have just referred, and the date to be fixed may have to be fixed sufficiently far ahead to take account of that. When a date for hearing has been fixed then the subpoena or notice to produce procedure may be activated and in that regard any necessary application may be made to the Court for consent or for orders to enable inspection of the relevant documents to be achieved prior to and sufficiently before the date for hearing. In my opinion, therefore, orders to the effect that I have indicated should be made. It would also be appropriate that the claimants provide, within an appropriate time, a statement in the form of points of claim familiar in the Commercial Division of the case to be made out on an appeal, if leave to appeal be granted. I appreciate that there may be some difficulties in finally formulating the claim prior to the inspection of the documents here in dispute. However, it will be appropriate I think that at least seven days before the date finally fixed for the URJ | MARGARITIS and ORS v AGC (ADVANCES) LTD and ANOR (Clarke JA) 3 hearing of the substantive applications, points of claim of this kind be formulated, filed and served upon the other parties to the application. The question of costs of the proceedings should be dealt with subsequently. In my opinion orders to the effect that I have indicated should be made. Priestley JA I agree. Clarke JA I also agree. (Counsel addressed on costs). MAHONEY JA: The appropriate order is to reserve the costs to the Court dealing with the matter in due course. The Court will make orders to the effect that I have indicated.