Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 548

New South Wales Supreme Court

CITATION : Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 548

HEARING DATE(S) : 15/06/09 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 16 June 2009

DECISION : See paragraph 25.

CATCHWORDS : Natural Justice - Entitlement of parties to fair trial

CATEGORY : Procedural and other rulings

CASES CITED : Walton v Gardiner (1993) 177 CLR 378

TEXTS CITED : 'The truth can cost too much: The principle of a fair trial' Chief Justice Spigelman, Australian Law Journal (2004) 78 ALJ 29

Michael Wilson & Partners (Plaintiff) Robert Colin Nicholls (First Defendant) David Ross Slater (Second Defendant) PARTIES : Temujin Services Limited (Third Defendant) Temujin International Limited (Fourth Defendant) Temujin International FZE (Fifth Defendant) Shaikenov & Partners, LLP (Sixth Defendant) Scoulton Holdings Limited (Seventh Defendant)

FILE NUMBER(S) : SC 50151/06

Mr M Walton SC, Mr J Carney (Plaintiff) COUNSEL : Mr G McGrath, Mr A Fox , Mr S Adair (First Defendant) Mr G Lindsay SC, Mr A Fox (Second to Fifth Defendants)

SOLICITORS : Clayton Utz (Plaintiff) Henry Davis York (First to Fifth Defendants)

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

Einstein J

Tuesday 16 June 2009 ex tempore

50151/06 Michael Wilson & Partners v Robert Colin Nicholls & Ors JUDGMENT The defendants notice of motion 1 At the commencement of the first day of these proceedings [currently fixed for six weeks] the defendants by notice of motion filed on the 11 June 2009 sought a number of orders including an order that the proceedings be stayed until the expiry of a period not less than one month after service upon them of particular documents. 2 A deal of the first day was taken up with the cross contentions in relation to the notice of motion and a decision was reserved. 3 Mr Lindsay SC put the motion on a number of bases, the first a positive basis of the need for a fair trial and the second, a negative basis, namely an allegation of an abuse of process of the Court. The documentary based basis 4 A deal of the essential backdrop underpinning a number of the defendant's submissions involves an arbitration heard in the United Kingdom which commenced on 10 November 2008 and apparently concluded in late February 2009 [a 20 day arbitration]. That was an arbitration between Mr J F Emmott and the plaintiff in these present proceedings. Apparently no decision has yet been given in that arbitration. 5 Although Mr Emmott is not a party to the present New South Wales proceedings, he is apparently currently listed on the defendants' side of the record as proposed to give evidence: apparently an affidavit of his has been served on the plaintiffs. Indeed the Court has been informed that the defendants have served affidavits of Mr Nicholls, Mr Schoonbrood and Mr Sinclair, all of whom were apparently witnesses in the United Kingdom arbitration. The plaintiffs have sought to thumbnail sketch those affidavits as 'simply re-badged affidavits', which I understand is to suggest that they contain much of the same material as had been adduced during the arbitration. 6 Whilst there are a number of other matters raised by the defendants in support of their notice of motion, a considerable part of the notice of motion involves the contention that in very recent times they have been flooded with an enormous volume of material generally in the shape of that emanating from the above described arbitration. They claim that some of that material, in so far as constituting redacted material, must be supplied in an un-redacted form and that they require a proper period of time in which to absorb this material before being in a position to continue with the final hearing. 7 It is fair to observe that over a considerable period of time the plaintiffs took the position that the arbitration was subject to a confidentiality regime and that the current plaintiff was not in a position to provide the current defendants with any information in relation to the arbitration. There is considerable correspondence now before the court running from approximately November 2007 up to very recent times which appears to disclose the respective positions taken by the parties. 8 Ultimately it appears that Mr Emmott, on certain conditions, had proposed to waive confidentiality but the whole picture appears to have only slowly evolved and indeed there is correspondence as late as June 2009 from Holman Fenwick Willan suggesting that as at early June 2009 no agreement had been reached regarding the use in other proceedings of documents disclosed in the UK arbitration. 9 Ultimately many questions may arise in relation to costs of and occasioned by one or both of the parties in relation to the whole of the question of the disclosure of the documents utilised in the UK arbitration. One only parameter of the exercise may involve whether or not as the plaintiff claims: