Idoport Pty Limited v National Australia Bank Limited; Idoport Pty Limited v Donald Robert Argus, [2006] NSWSC 1296

New South Wales Supreme Court

CITATION : Idoport Pty Limited v National Australia Bank Limited; Idoport Pty Limited v Donald Robert Argus, [2006] NSWSC 1296

HEARING DATE(S) : 27/11/06, 28/11/06 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 11/29/2006

DECISION : Reject line of cross-examination.

CATCHWORDS : Discretion to disallow questions put in cross-examination - Case within a case - s 135 Evidence Act 1995

LEGISLATION CITED : Evidence Act 1995

Idoport Pty Limited (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant)

FILE NUMBER(S) : SC 50113/98; 50026/99

COUNSEL : Mr L Foster SC, Mr A Paterson (Plaintiff) Mr J Sackar QC, Mr J Halley, Ms K Williams (Defendant)

SOLICITORS : Sarvaas Ciappara (Plaintiff) Freehills (Defendant)

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

Einstein J

Wednesday 29 November 2006 ex tempore Revised 30 November 2006

50113/98 Idoport Pty Limited v National Australia Bank Limited & Ors

50026/99 Idoport Pty Limited v Donald Robert Argus

JUDGMENT Case within a case ruling 1 The Court is hearing the Gross Sum Costs application by the National Australia Bank parties. 2 An objection has been taken to a line of questions sought to be put by Mr Foster SC [leading counsel for the Idoport Parties] to Mr Lovell, the partner of Freehills presently being cross-examined. 3 The line of questions and the respective submissions in relation to the objection to the questions commences at transcript 124.44 and ends at transcript 132.26. 4 The proceedings were never litigated to finality as they were dismissed for a want of compliance with orders made for the provision of security for costs. At the time the proceedings were dismissed the plaintiffs were still in their case and the defendants had not commenced their case. 5 Amongst the suite of issues tendered for litigation by the National Bank Parties were issues which concerned the functionality of the Ausmaq system, its scalability and its potential for commercialisation in many countries. The contention of the National Bank parties was that the plaintiff's loss of chance case would fail for many reasons, including defective/missing functionality as well as an inability to achieve commercialisation of the business in many parts of the world. Numerous statements in support of and against these propositions had been taken from witnesses and, although the defendant's evidence had not been read, there had been many occasions on interlocutory motions before and during the hearing for the Court to be taken to the proposed issues [principally in order to give rulings as to whether or not to grant leave to rely upon particular statements in the context in which the parties were at issue as to whether the statements were within or without time and as to whether or not, and if so when, and precisely how, one or other of the parties was said to have acted unfairly in failing to comply with directions or in putting forward in reply, materials which the other party contended were in fact only masquerading as such, being in truth, materials put forward in chief]. 6 The precise questions asked up to the point in time when the objection was taken treated with a transcript headed "JMG/NMG Management Committee Meeting Friday 19 October 2001" [to be found at Exhibit SWH 8 to an affidavit of Mr Hetherington sworn on 20 July 2005]. 7 Without descending into the detail, the section the subject of the cross-examination treated with so much of these minutes as included a statement by Mr Burrows [one of the NMG representatives attending at the meeting], giving some history of the suggested lack of functionality of the Ausmaq system and outlining a decision said to have been taken to completely rebuild the system, the time involved in that exercise and the position which had been achieved in that regard by the time of this meeting. 8 The objection to the question and to the line of questions was taken when Mr Lovell was shown a number of sections on the first two pages of the transcript and then asked a detailed question as to whether he had been informed at any time before October 2001 that the bank had a new system code-named Project Badger [transcript 128.3]. 9 The transcript taken in the absence of the witness then included the following exchange: