New South Wales Supreme Court CITATION : Prentice & Barila v Treetop Projects Ltd [2006] NSWSC 999 HEARING DATE(S) : 25/09/06 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 09/25/2006 DECISION : Application rejected. Orders made for service on interested parties. CATCHWORDS : PROCEDURE - Discovery and Interrogatories - Application by defendants in District Court proceedings for discovery of material filed in Supreme Court proceedings to which they were not parties for the purpose of cross examination of witnesses in the District Court proceedings - Whether application should be heard ex parte CASES CITED : Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 Queensland Mines v Hudson (1976) ACLC 40-266 Maxwell William Prentice & Vincent Christopher Barila (in their capacity as liquidators of Tumut River Orchard Management Ltd) ( in liq) - 1st Plaintiff PARTIES : Tumut River Orchard Management Ltd (in liq) - 2nd Plaintiff Treetop Pojects Ltd (under external administration) - Defendant FILE NUMBER(S) : SC 4133/99 COUNSEL : Mr M Einfeld QC/ Mr J Stephenson - Applicant SOLICITORS : G J Gooden Solicitor IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J MONDAY 25 SEPTEMBER 2006 4133/99 MAXWELL WILLIAM PRENTICE & VINCENT CHRISTOPHER BARILA IN THEIR CAPACITY AS LIQUIDATORS OF TUMUT RIVER ORCHARD MANAGEMENT (IN LIQ) & ANOR v TREETOP PROJECTS LTD (UNDER EXTERNAL ADMINISTRATION) EX TEMPORE JUDGMENT 1 I have before me an application by way of notice of motion that leave be granted to the applicants to use in relation to the conduct of District Court proceedings, documents filed and/or disclosed in these Supreme Court proceedings, including an affidavit of the liquidator of one of the companies, party to the proceedings, and an individual who is the principal and director of the original lender of funds to investors, including the applicants, who are the defendants in the District Court proceedings. I am asked to deal with this matter ex-parte. 2 As I have said, the individual is a director of a company that lent to the defendants in the District Court proceedings. There is alleged to have been an assignment of the loans to another company within that gentleman's group, and an assignment to a third entity within that group. 3 The defendants played no part in the proceedings in the Supreme Court. The central issues in the District Court proceedings are whether the moneys lent to the defendants by the first party that I have mentioned were ever dealt with in accordance with the documentation and, secondly, the validity of the alleged assignments, particularly that of the second to the third of those entities. Questions as to whether any consideration for the transfer were given, and whether the debts of the defendants in the District Court proceedings were included in the assets assigned arise. 4 In support of the proposition that I should deal with this matter ex-parte, I have had cited to me Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1. That was a case in which the plaintiff sought production for inspection of a number of documents in respect of which the defendant claimed privilege. One of the documents was held by Clarke J not to be privileged. The question of production for inspection of that document arose. It contained, in the main, results of discussions with police officers and other persons together with hypotheses based upon those discussions. His Honour was of the view that the document was of such a nature that its material would not enable the plaintiffs to be in a better position from the point of view of the presentation of the case at trial. On the other hand, his Honour said it was clear that the only purpose to be served by letting the plaintiff see the documentation would be to put them on notice of alleged suspicious circumstances. On those bases his Honour declined to make an order for production of the document. 5 In Queensland Mines v Hudson (1976) ACLC 40-266 Wootton J declined to make available to the plaintiff until after the conclusion of its cross-examination of the defendant a document that had been produced on subpoena in order that the evidence should be heard before it could be suggested that it had been in any way tailored to take account of any apparently contradictory document of the deponent. 6 By analogy with those cases, it was submitted that if this matter was not dealt with ex-parte, the liquidator and the gentleman to whom I have referred as the principal of the three companies that I have mentioned, would be put on notice, and the forensic advantage of cross-examination would be lost. 7 While I am of the view that those are matters which ought to be taken into account in determining whether or not to deal with the application ex-parte, I am of the view that the interests of justice are better served by the ordinary rule that matters are dealt with in open court and on notice to opposing parties. I therefore decline the application to deal with the notice of motion on an ex-parte basis. 8 I had been asked to treat the application confidentially, hence my non-identification in these reasons of any person. In light of my decision, however, I have entitled these reasons by reference to the Supreme Court proceedings in which the notice of motion was filed. ********** 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.