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

New South Wales Supreme Court

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 Woolworths Limited ACN 000 014 675 (Plaintiff) PARTIES : 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 been a simple matter for the defendant to adduce evidence from one or other of his legal advisers to this effect, but it was simply not forthcoming. 6 On the occasion when the application for leave to amend was made, Mr Goot was asked to identify any evidence which he may seek to submit might otherwise have been called but was not able to deal with this matter very specifically nor to deal with the fact that, as it was put to him, there had been an enormous amount of cross-examination during the hearing in relation to what were seen, certainly by the court, as issues in terms of what it was that had occurred on 30 June, 1 July and 2 July. 7 On that occasion there was no indication that the defendant contended that the application for leave to amend should be conditioned on the entitlement, for example, of the defendant to call Ms MacDonald or any other witness, although she was obliquely referred to. Mr Goot indicated that he had not, as I recall it, had an opportunity himself to speak with her. 8 I am unable to accept, bearing in mind the whole of this litigation, that it was otherwise than entirely appropriate and necessary for the defendant if he wished to take this pleading point, to raise the pleading point on innumerable occasions during the course of the hearing. The contention that the defendant was simply entitled to sit back and permit the litigation to continue, always intending to raise this pleading point at the heel of the hunt, simply cannot be accepted in litigation conducted as this particular piece of litigation was. 9 That is not, however, an end to the matter. 10 It is appropriate first to refer to the principles which underpin the proper exercise by the court of its discretion on applications such as the present. 11 In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Clarke JA put the matter as follows: