Idoport Pty Ltd & Anor v National Australia Bank Limited & Ors, Idoport Pty Ltd & Anor v Donald Robert Argus [10] [2000] NSWSC 776

New South Wales Supreme Court

CITATION : Idoport Pty Ltd & Anor v National Australia Bank Limited & Ors, Idoport Pty Ltd & Anor v Donald Robert Argus [10] [2000] NSWSC 776 FILE NUMBER(S) : SC 50113/98; 50026/99 HEARING DATE(S) : 27/07/00 JUDGMENT DATE : 27 July 2000

PARTIES : Idoport Pty Limited & Anor (Plaintiffs) National Australia Bank Limited & Ors (Defendants) JUDGMENT OF : Einstein J

COUNSEL : JJ Garnsey QC, M Dicker, R Titterton (Plaintiffs) T Bathurst QC, J Sackar QC, H Insall, J Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehill Hollingdale & Page (Defendants) DECISION : See 2000 NSWSC 769

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

EINSTEIN J

Thursday 27 July 2000 ex tempore Revised 4 August 2000

50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS

50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS

JUDGMENT

1 HIS HONOUR: An ex tempore judgment was delivered late yesterday in the course of which I indicated that I intend to order that a folder containing the up-to-date pleadings in each of proceedings number 50113 of 1998 and 50026 of 1999 be placed in the registry and be made available for inspection on reasonable notice to any member of the public. I reserved for further consideration and for such submission as the parties may wish to present, the question of whether and, if so, by what formal order, the taking of copies of the pleadings should be permitted. In short, there is a need for the court to define with more precision what is to be meant by the words "make available for inspection", in the order to be made. 2 The plaintiffs, through Mr Garnsey of Queen's Counsel, have indicated that in this regard, the plaintiffs do not suggest there to be any problems or difficulties in relation to the making available for inspection of the subject folder through the registry. Mr Garnsey has not sought to make any further submission on that topic. 3 Mr Bathurst of Queen's Counsel for the defendants has indicated that he does not have anything to add to the matters which Mr Garnsey had raised. 4 It may assist in following the logic which obtains and underpins the court's reasoning process to refer for a moment to the procedures adopted earlier this century in the Supreme Court of New South Wales. It was common in those periods for counsel to formally read the whole of the pleadings aloud in open court. In major litigation, that might be a task relegated to junior counsel. 5 Times have changed and the length of pleadings in complex litigation is probably now of an entirely different order to the length of pleadings before the court in those earlier years. It is now generally inappropriate in complex commercial litigation for counsel to be obliged to or to seek to formally read every word of the pleadings aloud to the court. 6 The common course in proceedings of this nature which is followed by counsel in opening a case, is for the pleadings to be referred to as and when appropriate. In the present proceedings, for example, leading counsel for the plaintiffs has already, on a number of occasions, taken the court to many paragraphs in the statement of claim, but has generally refrained from reading very large slabs of the statement of claim verbatim. It has been, and remains, appropriate for Senior Counsel for the plaintiffs in opening to revert back to the pleadings on particular sections of the plaintiffs' case by reminding the court that in particular paragraphs, often identified by number or page, particular allegations are made or causes of action pressed. 7 In like fashion, issues thrown up by the defence and in respect of cross-claims are identified by shorthand references to pleadings. If counsel in opening their representative cases were to read the pleadings to the court, then any person present in court would have every entitlement to take notes and the precise content of the pleadings would move into the public domain. 8 The matter, the subject of the ex tempore judgment late yesterday, and of this judgment, goes to the degree of control that the court should exercise, over the folder of pleadings to be made available at the registry to those who seek to inspect that folder. In this way the court is lending its assistance to provide for inspection, detailed material, in a form which those who have actually sat through the hearing would not have. 9 Once a party adduces evidence in open court, whether from a witness who gives oral evidence or by reading onto the record an affidavit made by a witness, or by formally reading (although not being obliged to read aloud) such an affidavit, then subject to questions of confidentiality or other court order being made in appropriate circumstances, that document is regarded as falling into the public domain, and copies of it, when sought, presumably require to be made available by the court on appropriate terms as to payment of copying costs payment and certainly notes of the evidence may be taken. 10 I am unable to discern any material difference between those situations and the situation which obtains when pleadings are taken as read before the court. For those reasons, it does not seem to me appropriate that the court constrain the entitlement of those who seek to have access to the pleadings folder for the purpose of inspection in any fashion. I can see no reason why such persons should not take such notes as they are disposed to take of the pleadings and I can see no reason why copies of the pleadings should not be able to be obtained, subject to appropriate arrangements being made to pay for the copying. 11 Nothing in this judgment is intended to deal with questions which may arise relating to the use and re-publication of all or part of the pleadings to be made available through the court registry. The accurate and fair reporting of the hearing in respect of which the pleadings will have been made available and the responsibilities of those who obtain access to those pleadings to ensure that the use, publication or re-publication of that material is lawful, is not presently before the court for consideration.