New South Wales Supreme Court CITATION : Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [8] [2000] NSWSC 660 FILE NUMBER(S) : SC 50113/98 HEARING DATE(S) : 28/06/00 JUDGMENT DATE : 28 June 2000 PARTIES : Idoport Pty Limited & Anor (Plaintiffs) National Australia Bank Limited & Ors (Defendants) JUDGMENT OF : Einstein J COUNSEL : JJ Garnsey QC, RC Titterton (Plaintiffs) JR Sackar QC, JA Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehill Hollingdale and Page (Defendants) DECISION : Parties to bring in Short Minutes of Order THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION - COMMERCIAL LIST EINSTEIN J Wednesday 28 June 2000 Revised 4 July 2000 50113/1998 - IDOPORT PTY LTD AND ANOR v NATIONAL AUSTRALIA BANK LTD AND ORS JUDGMENT 1 In proceedings number 50113 of 1998 the matter has been before the Court for directions in relation to a close consideration of matters which now separate the parties in terms of the proceedings due to commence in just under four weeks from the present date. 2 Mr Garnsey QC has represented the plaintiffs on the submissions in relation to directions which have taken place today and earlier, Thursday of last week. Mr Sackar QC has represented the defendants on the submissions which have taken place today, but Mr Bathurst QC represented the defendants in the submission which took place late last week. 3 The position which obtains, as I understand it, is this: It is common ground that there have been some departures from the timetable which was the subject of the orders of 18 May 2000. Whilst there is apparently some debate as to the proper construction of those orders, my own reading of those orders suggests that there was a direction that further expert statements would be filed by 7 June 2000 if made by Mr Maconochie. It is common ground that Mr Maconochie's expert statement in reply on similar and equivalent functionality is not yet to hand and is now anticipated to be available by 4 July. It is common ground that Mr Maconochie's statement in reply on similar and equivalent functionality is to be in excess of 150 pages. 4 In those circumstances, as the transcript of submissions today will reveal, Mr Sackar has taken the Court closely to his personal analysis and assessment of the state of the expert evidence and of the endeavours of the defendants to meet the materials sought to be mobilised by the plaintiffs. 5 Whilst a deal of what Mr Sackar put in submission from the Bar table is apparently not accepted by the plaintiffs, the submissions were generally to the effect that the plaintiffs ostensibly, under cover of statements put on in reply, had put on substantial sections of such statements which could only, so he submitted, be regarded as expert evidence supplementing the evidence-in-chief. 6 He also submitted that a close analysis of the various materials which had been served by the plaintiffs (ostensibly in reply), would reveal what he referred to as material differences in focus and in basis from the earlier materials sought to be mobilised by the plaintiffs. 7 In a letter sent by Freehill Hollingdale and Page to Withnell Hetherington on 27 June 2000, the former purported to set out in a series of numbered paragraphs, the alleged material differences as between the initial and later reports of certain of the plaintiffs' experts, and likewise as between, for example, Mr Maconochie's fifth statement and Mr Mack's statement in reply. 8 Whilst the parties are at odds as to the extent to which, if at all, the plaintiffs have in their materials in reply moved away from critical aspects of their earlier filed expert materials, it seems common ground that the Court would find it extremely difficult at this stage to undertake an appropriate analysis necessary to disentangle which of the defendants' submissions or the rebuttal plaintiffs' submissions in this regard, ought be accepted. 9 During the course of argument this morning, the Court suggested that Mr Garnsey and Mr Sackar endeavour to reach a consensus as to a way forward in terms of at least so much of the directions to be given as could be agreed upon. That discussion appears to have led to agreement in terms of at least eight matters. These are the matters noted as paragraphs 1 through 8 inclusive of a document entitled "Short minutes of order" which Mr Sackar furnished to the court. That document, if there is a clean copy available in court, will be marked for identification 1 for the purpose of it being identified. 10 It is unnecessary now to repeat each of paragraphs 1 to 8 because they can be annexed to the form of judgment when revised for the parties' assistance. In short, however, the parties have managed to agree that the plaintiffs' statement from Mr Maconochie, in excess of 250 pages, is to be served by 30 June, and the time in which the plaintiffs are to file his expert statement in reply on similar and equivalent functionality, which is to be in excess 150 pages, is to be extended to 4 July. 11 There is further agreement on the time in which the plaintiffs are to file an expert's statement in reply on damages from Mr Maconochie, limited to a reply to Mr Turner's expert report. 12 There is further agreement on an extension of the time for the plaintiffs to file one further expert statement in reply on damages, limited to a reply to the expert of Mr Gary Turner. 13 There is further agreement that the plaintiffs will by 10 July file and serve no more that two further experts statements from the witnesses who have not previously provided reports in response to the expert statements relied upon by the defendants from Mr Bryant. 14 The parties agree that the Court is to note that, subject to the matter referred to in paragraph 8, the plaintiffs will by 10 July file and serve the balance of the statements that they intend to rely upon at the hearing, in relation to post-contractual and post-claim issues. 15 There is further agreement - and I should be grateful if when the defendants' side bring in short minutes of order in a re-engrossed fashion, this could be included, that the time for Mr Maconochie to file and serve a statement in reply to dealers' statements and minor employees' statements relied upon by the defendant, is to be extended to 17 July 2000. 16 Debate has then taken place in relation to paragraphs 9, 10 and 11 of the document MFI 1. 17 Mr Sackar has made plain that his first-hand assessment, including his dealing with witnesses who are overseas in recent weeks, is that the dates typed into MFI 1 are seen by the defendants as very likely to be realistic dates. He does, however, as I understand it, accept that there may well be a certain tolerance within those dates. The difficulty which I gather from him, unless I misunderstood his submission, that the defendants face is that, to a substantial extent, unless and until they see the material now sought to be mobilised shortly from the plaintiffs, they cannot identify exactly which day it is by which they can be certain that their further responsive materials may practicably be filed and served. 18 I have determined - notwithstanding Mr Sackar's statement that these dates may not ultimately be seen to be realistic and notwithstanding Mr Garnsey's submission that even earlier dates should be given - to insert into paragraph 9, the date 8 September in the place of 15 September and to insert into paragraph 10, the date 15 September in place of 22 September. 19 There has been a particularly rigorous debate as to the appropriate date to be inserted into the first line of paragraph 11. The position which obtains is that, as the document in its typed form reveals, the defendants contend that 29 September is the most realistic date to be inserted. The plaintiffs have strongly submitted that 15 September should be the day inserted into the first line. Here again the particular difficulty which seems pervasive from the defendants' side of the Bar table is the inability to know, until they see that to which they are to respond, precisely how long it will take them to respond. 20 In circumstances in which Mr Garnsey has submitted that Friday 15 September should be the appropriate date, Mr Sackar has admitted Friday 29 September should be the appropriate date. To my mind, the date to be inserted should be 20 September. That is some nine days before, I accept, the defendants have contended for, and is some, I accept, five- days after the plaintiff contends for. To my mind, and doing the best that the court can in the difficult exercise of fixing a date which may or may not ultimately turn out to have been realistic or practicable, that is the date which should be determined. 21 I have on my mind particularly the fact that the Court will be resuming after the Olympic break on Tuesday 3 October for recommencement of the hearing and the avoidance, to the extent possible, of difficulties which may otherwise be faced by both parties if there are still a number of outstanding reports due to be received. 22 Insofar as paragraphs 9, 10 and 11 have been concerned, Mr Garnsey has submitted that the defendants should be confined in each of those directions to filing statements form existing experts. To my mind, that submission should not be accepted. Having said that, however, the Court will examine closely, when and if additional experts are sought to be mobilised by the defendants, the extent to which those additional experts in effect are put forward as producing an entirely new case. To my mind, there must come a day when the exchange of expert statements, even in a dynamic exercise and even in a moving situation, has to come to an end so that a line is drawn. 23 In that spirit, I commend to the defendants their best possible best efforts to ensure that the further expert statements to be produced in response to paragraphs 9, 10 and 11 to the absolute extent possible and practicable in fact be confined to experts who have already given expert evidence. I do not propose, however, in the document to insert the words "confining those statements to existing expert statements", but I have sought to make clear the reasons why that sort of confinement may well be important it not mandated, at the end of the day. 24 The plaintiffs have also submitted that the words "in response" are inapt, as I understand it, when used in paragraphs 9, 10 and 11 and that such words as "in rejoinder" should be utilised. To my mind, these semantic questions do not solve anything, and ultimately as a matter of substance the Court will have to work out whether these statements are effectively in response, (as it were, in rejoinder). I do not think that the semantic exercise sought to be now injected should be the mode of inclusion of that particular approach to these directions. 25 I propose to give a direction in terms of paragraph 12 and a direction in terms of paragraph 13 noting, as the transcript will record, that Mr Sackar has made plain that it is one only expert statement which is to be the subject of paragraph 13 and not a number. 26 In relation to paragraph 14, Mr Garnsey has submitted that until the plaintiffs have the benefit of inspection of Mr Yamamoto's expert report and expert records dealing with Hong Kong and Taiwanese markets, the plaintiffs are simply unable to accede to a particular date. I accept what Mr Garnsey has said as a matter of substance. However, it must be common ground by now that a deal of these very directions are being made in circumstances in which one or both parries have that difficulty. 27 I also accept that when senior counsel for each party inform the Court of their best present assessment, the Court is entitled, bearing in mind the competence of those senior counsel and their familiarity with the matter, to accept those statements at face value, in the absence of evidence to the contrary. 28 Doing the best that I can to adjust the situation to ensure that the hearing continues without hiccup after the Olympic break, to my mind the appropriate date to insert in the first line of paragraph 14 is 6 October. I propose to give the directions sought in paragraphs 15 and 16. 29 It should be clear from the above reasons, but if it is not clear I will make plain, that the plaintiffs had no instructions to accede to those of the matters the subject of decision earlier referred to. 30 I have said on a number of occasions that when and if an application is made to the Court by either party, it will be determined on its then merits. I intend that position to obtain as we go forward in the somewhat uncertain environment of the production of these statements by the times now delimited. However, it has to be said that the approaching hearing date and the series of sets of directions and varied directions given in the first half of this year, and the last months of last year, have now led to a point in time where the Court is going to have to be reasonably strict in limiting the parties to the statements which they have mobilised for the hearing which, after all, has to commence at some time and in respect of which the parties, in a real sense, have to draw a line at some time. It could not possibly be good case management or a given that this case could continue in a circumstance in which each party continued to put on responsive material to the other's responsive material without limitation. 31 Having said all of that, the case is most unusual in the issues sought to be raised and the Court accepts that both parties are doing their level best within their respective resources, to professionally and competently prepare for a trial which will undoubtedly be difficult to run and difficult to case manage. 32 I direct the defendants' solicitors to propound short minutes of order, which I will make if they can be provided to me tomorrow, in terms of the adjusted timetable. I certify that paragraphs 1 -32 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 28 June 2000 and revised on 4 July 2000 ___________________ Susan Piggott Associate 4 July 2000 Last Modified: 06/13/2002 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.