On 24th November, Justice Colvin issued orders appertaining to the the suit brought by Fuji Xerox Australia against former directors Neil Whittaker and Devlin Bell plus auditors EY (Ernst & Young) and former partner EA Lang.
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| The cross-claims are flying, and documents, emails etc are to be sought in the cases bought by Fuji Xerox |
The orders are far reaching and include a costs award against Fuji Xerox for its unsuccessful interlocutory attempt to have parts of EY’s and Lang’s defenses struck out. Justice Colvin ordered:
“The applicants (Fuji Xerox Australia and Fuji Xerox Finance) are to pay the third and fourth respondents’ (EY and EA Lang) costs of the amended interlocutory application filed 28 October 2020, in accordance with rule 40.13 of the Federal Court Rules 2011(Cth).”
Such a costs order does not influence the final outcome of the litigations.
Timeline of next 6 months
Timeline: By the following dates, Justice Colvin has ordered:
December 22nd 2020: - FXA and FX Finance, Whittaker and Bell must: “file and serve any defence to the third and fourth respondents' amended statement of cross-claim dated 13 November 2020”. This indicates that EY is cross-claiming against Whittaker and Bell as well as FXA.
December 22nd 2020:- Whittaker, EY and EA Lang must: “file and serve any defence to the second (Devlin Bell) respondent's statement of cross-claim dated 20 November 2020. This indicates that Bell is also claiming against Whittaker, EY and EA Lang.
December 22nd 2020:- FXA and FX Finance must: “file and serve any reply to the defences of the first, second, third and fourth respondents. (Whittaker, Bell, EY and Lang)
December 29th 2020:- Parties are to have agreed protocols for the search and discovery of documents, the manner in which reasonable and proportiante searches may be conducted and the extent to which documents may be redacted once discovered, for relevance and privilage.
February 1st 2021:- Devlin Bell is to: “file and serve any reply to any defence filed by the first, third and fourth respondents (all the others) against the second respondent's (Bell) statement of cross claim dated 20 November 2020
February 10th 2021:- All parties are to have confered and exchanged requests on what documents can be accessed (discovered) and accepted.
February 24th 2021:- All parties are to notify other parties af any objections to the requests above.
March 3rd 2021:- A schedule of doucuments sought to be discovered and produced by parties be made available, both agreed to and not agreed to.
March 10th 2021:- If parties can not agree to all requests of what documents may be released for discovery, “written submissions (not exceeding 10 pages) concerning those aspects of discovery not agreed,” to be filed.
Cross-Claims
As far as can be deduced from the orders:
EY and Lang have crossed-claimed against Fuji Xerox, FX Finance, Whittaker and Bell. Bell has cross-claimed against Whittaker, EY and Lang; Whittaker has cross-claimed against Bell, EY and Lang.
So, from the original application by Fuji Xerox and Fuji Xerox Finance against four respondents (Whittaker, Bell, EY and Lang), there are now cross-claims within the respondents against each other and also a cross-claim against the applicants by EY, against FXA/Finance.
Possibly fourteen lawsuits to be resolved in one case.
The next case management hearing is to occur “on a date not before March 10th 2021.” Costs are reserved.
