New South Wales Supreme Court CITATION : OAMPS LIMITED v PORTER [1999] NSWSC 326 revised - 15/04/99 CURRENT JURISDICTION : EQUITY FILE NUMBER(S) : 004939/98 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 9 April 1999 PARTIES : OAMPS LIMITED v ROBERT ARTHUR PORTER JUDGMENT OF : Bryson J COUNSEL : A. Leopold for the Plaintiff. T. Hughes QC/I. Jackman for the Defendant SOLICITORS : Henry Davis York for the Plaintiff Withnell Hetherington for the Defendant CATCHWORDS : Practice and Procedure - directions in expedition list. ACTS CITED : s.1322 (2) of the Corporations Law DECISION : See Paragraph 16 of judgment. - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J FRIDAY, 9 APRIL, 1999 004939/98 OAMPS LTD v ROBERT ARTHUR PORTER OBSERVATIONS AND ORDER: HIS HONOUR : 1 Application is made today, on no more than a few hours' notice, by the plaintiff in terms of the Notice of Motion which is now filed in court by leave. 2 I have seen the affidavit of Christopher Steven Frawley sworn today and filed in court by the plaintiff. Exhibit 1 is a copy of a letter from Henry Davis York to Paul Hetherington of 8 April 1999. Interlocutory exhibit 2 is a bundle formerly exhibit CSF1. I have also read three affidavits filed by the defendant in court today; affidavits of Stuart William Hetherington sworn 8 April 1999; Anthony Geoffrey Hartnell sworn 9 April 1999 and Robert Arthur Porter sworn 8 April 1999. I direct that the Notice to Produce, defendant to plaintiff, which was shown to me earlier be filed. 3 The plaintiff's notice of motion makes a number of applications. First, that Australian International Insurance Limited be joined as second plaintiff. This application is no longer contentious and the order will be made. 4 The principal subject of the application is vacation of my appointment for the trial of proceedings to take place on 3 May next. I made the order for expedition on 19 February, not on the ground of the position of the defendant who sought expedition, but because the question whether he holds office as a director of a public company is involved in the proceedings. 5 The plaintiff in fact has claims of urgency for the proceedings to be brought on for hearing but they are not so far out of the ordinary urgency of equity business as to persuade me that the proceedings ought to be expedited. My concern is with what I see as the public interest aspect of the controversy. 6 The evidence put forward today in my opinion shows that reasonable endeavours have been made to prepare the case. They have not been successful because of the scale and range of facts which are relevant and because there is much information held by ASIC including records and business documents produced to ASIC by others and records of ASIC's own interviews. It is apparent to me that it would not be prudent for the plaintiff's legal advisers to settle affidavits or otherwise to go to trial without taking endeavours to get information held by ASIC as far as they can be taken. 7 I appreciate that ASIC does not exist to facilitate these litigants' endeavours and does not labour for the purposes of the conduct of this case, but in fact ASIC is in possession of a body of information important to the case and not readily available. It seems possible that some administrative procedures or litigation may be involved in obtaining information from ASIC. 8 I have been told that the Statement of Claim is now ready to be filed. It is much delayed, many weeks past the time which I appointed, and I expect it to be filed today or on Monday next. I will endorse it with leave to file. The addition of a plaintiff does not seem likely to add much to the complexities of the trial. The plaintiff's legal advisers now estimate the hearing time to be well in excess of five days. I am in their hands as to estimates but on the information and reasoning they put forward I see no ground to doubt their estimates. They are in a good position to make estimates, and they range from ten to fifteen hearing days. That time is not available in May 1999. 9 Mr Porter has made his arrangements with his legal advisers on the basis of my earlier appointment and says on affidavit that he wishes to proceed. I appreciate that the decision I am now making involves some inconvenience and disruption to him. I am of the view that as the facts stand the appointment can not be maintained. The plaintiff's statement of claim shows that the case is more complex than I initially appreciated; it will be more difficult to prepare and I expect it will require a longer hearing time than I earlier contemplated. 10 I have a choice between directing that the matter come on for hearing without allowing information to emerge fully from ASIC and on the other hand waiting for those endeavours to be fully tested. As there is to be a delay it should be long enough to take things as far as they can be taken. It does seem that, if the case goes to trial when there is a large body of evidence but it is out of reach of the parties, it may later be said that the plaintiff was not given an opportunity to test witnesses, or that for some reason there was a procedural failure in a trial which took place in those circumstances. 11 Although public interest concerns moved me to expedite proceedings on 16 February, I find now that it is not possible to act in that way and I can do no more than to ensure it is heard later this year, in the next five to six months. The application for expedition was appropriate in the case of this company, but what I then expected has proved not to be practical. I have to make a balance between the claim of this case for expedition and the claim of other cases and I feel that I should do no more. 12 I have given consideration to using the time in May to decide separate questions, yet to be well defined, with the object of settling the matter which bears most closely on the public interest, that is, whether Mr Porter remained a director of the company after 27 November 1998 and whether he remained a director after 1 April 1999. The defendant's counsel have shown me drafts of proposed separate questions and of the relevant facts on which argument is to be based. Before I decide to embark on the hearing of separate questions I will however give the parties a further opportunity to consider the contents of these drafts or any other questions or facts which are to be put forward. 13 It is necessary before embarking on the hearing of a separate question to have a well defined separate question, to know what facts are to be examined for its resolution and to have a well defined outcome , that is, a clearly established order which is to be made according to the answer given to the separate question. Definition of those things requires a little time and consideration, and I will return to that consideration on Friday next, 16 April. 14 I am particularly concerned whether disputed facts may have to be determined if all questions relating to Mr Porter's continuing to hold office are to be decided. I have in view the provisions of section 1322 of the Corporations Law and particularly subsection (2). If decision requires an address to the overall merits of his purported dismissal, or any other matter substantially open to dispute, I would be reluctant to embark on the hearing of a separate question. There should be one full address to the merits of the case and one only. 15 I earlier gave directions fixing times for filing affidavits. In view of the considerations I have just mentioned, I no longer require the parties to adhere to those directions and I will vacate them. 16 The orders are: I order that Australian International Insurance Limited be second plaintiff in these proceedings. I vacate the appointment for hearing the proceedings on 3 May 1999 to continue on 4, 5, 6, and 7 May. I direct that the statement of claim be filed and served on or before Tuesday, 13 April 1999. I vacate directions fixing times for filing affidavits. The proceedings be listed for directions on 16 April 1999 when I will consider: 1) Separate decision of questions. 2) Directions generally. The defendant has leave to file a further amended cross-claim and I direct that the cross-claim be filed with the defence. The costs of the application today are reserved. The exhibits are returned. ********* I certify that paragraphs 1-16 are the reasons for judgment of the Honourable Justice John Bryson. Date: 9 April 1999. (J. Stevenson) Associate Last Modified: 06/30/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.