In the matter of Mayne Pharma Group Limited

By Interlocutory Process filed by leave today, 16 March 2026, the Applicants, the First and Second Defendants in these proceedings, Cosette Pharmaceuticals Inc (“Cosette Pharmaceuticals”) and Cosette Pharmaceuticals Holdings Inc (“Holdings”) (together, “Cosette Parties”), seek an order that I disqualify myself from case managing or hearing the proceedings.

It should immediately be noted that that application deals with two separate matters, and the expression of those matters is perhaps not ideal, although it will be possible to deal with their substance in a relatively brief fashion. First, the application to my disqualifying myself from "case managing" the proceedings should be understood as an application that I disqualify myself from making directions in the proceedings, when those proceedings are listed in the Corporations Directions List, when I am sitting in that Directions List. The proposition needs to be put in that way because this Court does not operate on a docket system, in which one judge deals both with directions and the substantive hearing. The proceedings are instead the subject of directions which are given in the Corporations Directions List, from time to time, by the judge who is then hearing the Directions List. The Court's practice, for at least the last 12 months, has been that both corporations judges hear Corporations Directions Lists, often in two week blocks, with the identity of the judge hearing that Directions List changing from time to time. Second, the practice of the Directions List is that, when a substantive application arises, it is listed in the Corporations Motions List, and is then referred to one or other of the judges sitting in the Corporations List on that particular day.

The reference to my disqualifying myself from hearing the proceedings also needs to be understood in a somewhat qualified way, because I am not presently allocated to hear the proceedings. There are, in any year, typically three judges sitting in the Corporations List; and the matter will be allocated to one of those judges to hear the proceedings at some point shortly before the trial, often depending upon which judge is available at the earliest date or the date preferred by the parties. These matters will have a significant impact on this application, and are one reason that I will be able to deal with aspects of the application relatively briefly.

I will, however, in fairness to the Cosette Parties, represented today by Ms Whittaker and Ms Hudson, deal with the evidence and authorities to which they refer in some detail. In doing so, however, I will not be drawn into deciding matters which it is not necessary for me to decide.

I will first deal with the affidavit and other evidence upon which the Cosette Parties rely. They read several paragraphs of the affidavit dated 13 March 2026 of their solicitor, Ms Fox, who refers to her experience and exhibits a bundle of documents. The balance of that affidavit was not read. The exhibit to Ms Fox's affidavit in turn includes, and Ms Whittaker drew attention to, my judgment in Re Mayne Pharma Group Ltd [2025] NSWSC 1204 (“2025 Proceedings”). Ms Whittaker drew attention, in particular, to several findings that I had reached in respect of the evidence of particular witnesses in the 2025 Proceedings, and I bear in mind those findings.

Ms Whittaker also drew attention to the terms of the detailed Points of Claim filed by Mayne Pharma Group Ltd (“MPG”) in these proceedings, and to the nature of the allegations made in those Points of Claim. It will not be necessary to deal with those allegations at any length for reasons that I will note below, and I am again conscious of the desirability of not deciding matters that do not need to be decided. I bear in mind that, as Ms Whittaker pointed out, the First Defendant in these proceedings, Cosette Pharmaceuticals, was also a defendant in the 2025 Proceedings. The Second Defendant in these proceedings, Holdings, was not a defendant in the 2025 Proceedings, although it is the holding company of Cosette Pharmaceuticals. Ms Whittaker rightly identifies, but I will not need to decide, a question of the extent to which findings reached in the 2025 Proceedings may or may not ultimately bind Holdings.

The Third Defendant, Mr Burgstahler, has not to date appeared in the proceedings and was not a defendant in the 2025 Proceedings, although he was a witness in them and I made some observations as to his evidence. The Fourth Defendant, Avista Capital Holdings LP trading as Avista Healthcare Partners (“Avista”), was also not a defendant in the 2025 Proceedings. It also has not appeared in the proceedings to date.

With that background, Ms Whittaker provides a helpful, and admirably brief, summary of the applicable principles in her written submissions, and then engaged in a more detailed review of those principles in oral submissions. She notes that the relevant test for disqualification for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (“Ebner”). She rightly recognises that, as recognised by the plurality in Ebner at [19], judges have a duty to exercise their judicial functions; judges do not select the cases they will hear; and they are not at liberty to decline to hear cases without good cause. Ms Whittaker in turn acknowledges that, if a party to a case objects to a judge sitting, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. She refers, in that respect, to Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 (“JRL”), where Mason J referred to the significance of the judge's duty to hear a matter, unless properly disqualified from doing so, where that matter is allocated to him or her. Again, I note that the question of hearing a matter allocated to me does not presently arise because the matter is not presently allocated to me for the hearing of the trial. At this stage, my role in dealing with this matter is simply as one of the two judges who from time to time hear directions in the Corporations Directions List, in this and many other cases.

Ms Whittaker also points to the observation in Ebner at [20] that, in a case of real doubt, it will often be prudent for a judge not to sit in order to avoid the inconvenience which might arise if an appellate court took a different view. That is a sensible approach and one to which I would have regard if a question arose as to whether I were to hear the trial, if it were otherwise to be allocated to me for hearing. I will address the position in respect of directions in the Corporations Directions List below.

Ms Whittaker also referred, in written submissions, to other decisions including Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300; [1983] HCA 17 (“Livesey”) and British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (“Laurie”), which recognised the significance of the apprehended bias rule in respect of the public's perception of neutrality in litigation and, by extension, public confidence in the administration of justice. I give full weight to those considerations.

In the course of submissions, I also drew Ms Whittaker's attention to the observations of Mason J in JRL at 352, which dealt with the situation where a judge had previously decided questions of fact and law, and emphasised that the question was not whether a judge had previously reached such a decision, at large, but whether the judge's previous decisions "provide an acceptable basis for inferring that there is a reasonable apprehension that he [or she] will approach the issues" in the same way or could not be persuaded to a different view. In Donkin v AGC (Advances) Ltd (unreported, 9 December 1994), Kiefel J, sitting at first instance in the Federal Court of Australia, applied that approach in dealing with the effect of decisions previously made by her Honour in that case and the question of whether the fair-minded lay observer would consider that she could not be persuaded to depart from those decisions, and decided to disqualify herself from sitting.

Ms Whittaker in turn drew attention to the decision in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 442, referring to Livesey and the impact of previous decisions of fact and credibility. Both Ms Whittaker and Mr O'Brien who made brief submissions in respect of the case law for MPG, also drew attention to the observations of the plurality in Ebner at [8] that:

I pause here to note that this is not a question of my having an asserted interest in any of the litigants. Here, the matters which Ms Whittaker identified as the first step in the analysis of apprehended bias concerned, first, the findings that I reached as to particular witnesses in the 2025 Proceedings. They concerned, second, findings of fact which I had made as to issues in the 2025 Proceedings which, as I noted above, may or may not bind the Cosette Parties by way of issue estoppel or an extension of issue estoppel between associated companies. Ms Whittaker also pointed, third, to a suggestion that I had reached an adverse credit finding in respect of the Cosette Parties, or at least Cosette Pharmaceuticals, as a corporate entity. However, following a dialogue in submissions, it became common ground that I had in fact made no finding as to the corporate character of the Cosette Parties. As I understood Ms Whittaker's submission, it was instead put that the fair-minded lay observer might consider that, because I did not accept, in whole or in part, evidence of two witnesses associated with Cosette Pharmaceuticals and Mr Burgstahler, that might contribute to an apprehension of bias in respect of the corporate entities.

I was also taken in oral submissions to the decision in Laurie, and I have regard to that decision generally and to the observations to which I was taken in particular. Mr O'Brien in turn drew attention to two decisions, Re Gardiner (No 2) [2017] VSC 699 (“Gardiner”) and Palmer v Parbery & Ors [2018] QCA 302 (“Palmer”). Those decisions are of significance for this matter because they deal with case management approaches which are largely analogous with the approaches adopted in this Court, and draw a clear distinction between the question whether a judge should disqualify himself or herself from directions given in the preparation of a matter for hearing on the one hand and the substantive hearing of the case on the other. I should, in fairness to Ms Whittaker, note that the decision in Palmer makes regular reference to "recusal", a term to which Ms Whittaker was also attracted from time to time, although I might personally prefer the concept of disqualification.

Ms Whittaker also drew attention to QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [27], where Kiefel CJ and Gageler J made reference to the "jurisdictional significance" of bias, and noted that it is the responsibility of the Court as an institution and not merely a member of the Court to deal with such questions. Mr O'Brien in turn pointed out, correctly, in my view, that that matter depends on the application of the test for apprehended bias in particular, since apprehended bias must first exist in the sense noted in Ebner and subsequent cases before it can have any jurisdictional significance.

Ms Whittaker also drew attention to Greensill Bank AG v Insurance Australia Limited [2025] FCA 95, although that decision is somewhat distant from the present facts, where it turns on a judge who had previously appeared as counsel for one of the parties to the proceedings. The decision in Australian Securities and Investments Commission v SunshineLoans Pty Ltd (2025) 308 FCR 514; [2025] FCAFC 32 may be of greater relevance, where it turned, first, upon the connection between findings made in respect of issues at the liability stage of the proceedings, with issues that would then arise in a penalty stage of the proceedings; and emphasised the significance of applying the test for apprehended bias by reference to consideration of the logical connection between the relevant matters, there being adverse credit findings in the liability judgment and the feared deviation from determining the question in issue in the penalty proceedings.

With that background, I bear in mind that Ms Whittaker put subtle, and lengthy, oral submissions, which largely merged, as a matter of structure and perhaps intent, the question of whether I should disqualify myself from “case managing” the proceedings on the one hand and hearing the substantive trial on the other. Ms Whittaker submitted that the latter question was not hypothetical and that it was desirable to deal with that question at an earlier rather than later stage, and I will return to that matter below. She emphasised the jurisdictional character of apprehended bias, and I have referred to that matter above; and identified the findings which I had made, as to issues that may overlap between the 2025 Proceedings and these proceedings, and as to witnesses, which may give rise, on the Cosette Parties’ case, to a question of apprehended bias in respect of a final hearing of these proceedings.

Ms Whittaker also sought to bridge any gap which might exist between the hearing of directions in these proceedings and the final hearing by suggesting that, where a judge could not sit, or should not sit, or would not sit, on the final hearing, then he or she should also not hear directions in the matter. I accept that that proposition might be adopted in a docket system, such as the Federal Court of Australia adopts, as a matter of practice, where the judge who hears a matter ordinarily makes directions in that matter. That, of course, is not the process adopted in the Corporations List of this Court, or indeed in the Commercial List of this Court, where matters are centrally managed in a directions list, and the judge dealing with the directions list is frequently not the judge who hears the trial, although there may be overlap to the extent that judges are drawn from the same pool within a specialist list.

I now turn to the two applications which are brought, although it will be possible to deal with the second of them more briefly. As to the first, Ms Whittaker submitted that this matter was large and complex; and that significant issues would arise in directions hearings; and there was reason to think that any issues which might give rise to difficulty in my hearing the final hearing, including matters that I had previously determined or findings that I had reached as to witnesses, would therefore affect my ability to deal with directions. It seems to me that the fair-minded lay observer, with a basic understanding of the court process, would not take that view.

First, parties in all cases, large and small, are bound by the common obligation, as is the Court, to bring about the just, quick and cheap resolution of the real issues in dispute in the proceedings. The fair-minded lay observer would not consider, for example, that complex cases are more likely to give rise to disputes at a directions stage than simpler cases, or that parties in complex cases are likely to be less cooperative or less constructive than those in simpler cases. The fair-minded lay observer would also bear in mind the matters as to the structure of the Court, which proved to be of significance in dealing with similar matters in Gardiner and Palmer. The fair-minded lay observer would recognise that, in this List, directions generally deal with straightforward and often uncontroversial matters, for example, questions of timetabling. Those matters are ultimately straightforward, even if they may be contentious in particular matters, because they will be resolved by the relevant statutory obligations to promote the just, quick and cheap resolution of the real issues in the proceedings. The fair-minded lay observer would also bear in mind that, here, complex matters, including substantial contested motions, will be referred to one or other of the judges dealing with motions, and the question of whether I, or another judge, can hear a matter can be assessed from time to time, having regard to the matters in issue.

In those circumstances, it seems to me that the fair-minded lay observer, who provides the touchstone of the relevant test, would not consider that I am disqualified from engaging in dealing with this matter in the Corporations Directions List. I put the question in that way because that is my present role and it is not necessary to address any wider question as to being the sole judge "case managing" the proceedings in the manner that might arise if the Court adopted a docket system.

I can deal with the second aspect of the matter more briefly. The submissions which were put by Ms Whittaker, at some length, were directed to the question of whether I should disqualify myself from hearing the proceedings. As I noted above, I am not presently allocated to hear the proceedings. That question will not arise unless and until such an allocation takes place, likely sometime closer to a hearing date. There are obvious contingencies in respect of the question of whether I would be allocated to hear the proceedings, which include, among other things, the length of my judicial career and when the matter will be allocated to hearing; whether I remain in the Corporations List at the time the matter is allocated for hearing, which is a matter for the Chief Justice and not for me; whether I am on leave at the time the matter may go to hearing; and finally, the allocation decision that is ultimately made in circumstances where there are at least three judges in the Corporations List in any year who might be allocated the matter for hearing.

In these circumstances, it seems to me to be plainly premature, and hypothetical, to determine the question now as to whether I should disqualify myself from hearing proceedings which I am not allocated to hear. Such a determination has all the worse vices of hypotheticality. First, it involves determining a question which may never arise, in circumstances that that determination will be wasted if the question never arises. Second, it involves determining the matter at a time when the question is hypothetical, rather than at a later stage when it is real, when it could be determined in the circumstances that then exist. For these reasons, I decline to determine the question of whether I should disqualify myself from hearing a proceeding that I am not presently allocated to hear. I should add, for completeness, that although I have resisted any temptation to deal with the merits of a hypothetical application, that a fair-minded lay observer might also find it puzzling how a judge’s decision could be affected by bias or apprehended bias in respect of proceedings that he or she was not allocated to hear.

I should add to my oral judgment that this conclusion would not prevent the Cosette Parties raising the question of apprehended bias as to the substantive trial again if a change of circumstances arose, as it plainly would if I were to be allocated to hear the matter. I would, of course, advise the parties of that development, if it occurred, so they had the opportunity to do so.

For these reasons, the disqualification application is dismissed.

These proceedings were listed yesterday and today for directions, although the time yesterday was spent in dealing with a disqualification application, which was dismissed late yesterday. The parties have today addressed the directions to be made in the proceedings. The Cosette Parties have also filed in Court an application for a stay of the proceedings, pending the determination of the appeal brought by, inter alia, Cosette Pharmaceuticals from the 2025 Proceedings which have a connection with the issues in these proceedings.

The Cosette Parties were offered, on several occasions yesterday, and again today, the opportunity to proceed to have that stay application heard and determined, so that the question of whether any stay was to be granted would be resolved before directions were made, but declined that opportunity both yesterday and again today. MPG had made clear that, although the stay application was only provided to MPG’s solicitors late last week and was only filed, by leave today, it was in a position to respond to that application if it were pressed. Accordingly, as I had noted both in the course of submissions yesterday and again this morning, the position is that the stay application has presently not been pressed; it has not been determined because it was not pressed by the Cosette Parties; and no stay is in place Equally, as I have pointed out yesterday, it appears to be self-evident that the filing of a stay application does not itself bring about a stay, and only the determination of a stay application does so.

The question which then arises is what the Court should do in respect of directions as to the filing of Defences in the proceedings. That question is informed by several matters of history. First, by its Originating Process filed on 18 February 2026, MPG had foreshadowed that it would seek interlocutory relief that the matter proceed by way of Points of Claim and Points of Defence; that it have leave to file and serve its Points of Claim in a specified form, which was subsequently granted; and that the Defendants should file and serve their Points of Defence by no later than 1 April 2026.

Second, while the Cosette Parties have appeared, the Third and Fourth Defendants have not. It was put to me by Ms Williams, with whom Ms Hudson appears for the Cosette Parties, and I will proceed on the assumption that, the Third and Fourth Defendants, because they are situated overseas, have 42 days in which to file a notice of appearance, so it is not yet known whether they will file a notice of appearance within that period. In those circumstances, MPG sensibly accepts that, if an order is made for Defences, it should be limited to the Cosette Parties, on the basis that the Third and Fourth Defendants may ultimately never appear, in which case they are not likely to file Defences; or, if they do appear, they would then be ordered to file Defences which would catch up with the Defences filed by the Cosette Parties.

I also bear in mind that, when the matter was listed before me on 2 March 2026, Senior Counsel for the Cosette Parties, Ms Whittaker, with whom Ms Williams then appeared, foreshadowed seeking a stay of the proceedings on the basis that an appeal was to be (or had been) brought by Cosette Pharmaceuticals in respect of the 2025 Proceedings, and observed that:

Ms Whittaker also then observed that:

I then acceded, in substance, to that submission, by deferring the proceedings for directions to yesterday, without then ordering the Cosette Parties to file their Defences, to allow them to consider their positions as to, inter alia, their foreshadowed stay application. Obviously enough, as I noted above, while the Cosette Parties have ultimately filed their stay application today, they have elected not to proceed with it to a hearing today so as to have it determined prior to the making of directions. Instead, they, in effect, now submit that the making of directions should be further deferred in order to reflect their timetable for proceeding with their stay application, at a later point than today.

Also by way of history, I should also note that, in my ex tempore judgment delivered on 2 March 2026, I observed in standing over the matter for two weeks that:

I also there noted, in my ex tempore judgment, the question as to the stay application as to the proceedings, and observed that:

The Cosette Parties read part of an affidavit dated 13 March 2026 of their solicitor, Ms Fox, originally prepared in respect of the stay application, in support of a submission that directions for them to file their Defences should not be made today. In particular, they read paragraphs 54–56 and part of paragraph 57 of that affidavit. I recognise that Ms Fox was not a solicitor on the record in respect of the 2025 Proceedings, although she does not indicate when she was first retained in respect of the matters that arose in those or these proceedings. She sets out, in paragraph 54, the suggested inter-relationship between the 2025 Proceeding and this proceeding, and expresses the view that that will add an:

Ms Fox also refers to the very substantial steps which she considers are necessary to understand the scope and application of any estoppels arising from the 2025 Proceedings, which include, understandably, reviewing the pleadings and the judgment in the 2025 Proceedings; but also extend, more surprisingly, to reviewing the entirety of the transcript for 11 days of hearing in those proceedings. She notes that a legal question may arise as to the extent to which Holdings is bound by the determination in the 2025 Proceedings, so far as it is the holding company of Cosette Pharmaceuticals and may or may not share common offices with Cosette Pharmaceuticals. That legal question is, on its face, in relatively narrow scope. She refers to additional steps which are necessary to prepare the Points of Defence, by reference to her experience and knowledge as a solicitor, which include a request for further and better particulars; review of documents referred to in the Points of Claim; consideration of legal issues raised in the Points of Claim and consideration of factual issues; as well as conferral with potential witnesses.

I recognise that Ms Fox has not been cross-examined but, as a matter of fairness, I raised with Ms Williams the fact that, first, the Court was not bound to accept, in its entirety or at all, evidence even if it was not the subject of cross-examination, and I noted potential difficulties with Ms Fox’s evidence for Counsel's comment. I bear in mind, here, that this Court for many years has appointed experienced practitioners as judges, and expects those judges to have regard to their extensive professional experience in assessing the evidence which is given before them in respect of procedural steps in proceedings. In my case, that experience was some 22 years in a large Australian firm, conducting complex proceedings in the Federal Court of Australia and this Court, followed by nearly 15 years in this List, also with the conduct of complex and multi-party proceedings.

It seems to me there is a notable omission in Ms Fox's evidence, namely that Ms Fox has no regard, either expressly in her evidence, or in the steps set out, to the fact that Cosette Pharmaceuticals itself has knowledge of the 2025 Proceedings, because it was party to them; its then solicitors had very detailed knowledge of the 2025 Proceedings; one would expect, in the ordinary course, that its General Counsel and its directors would have received reports as to and had knowledge of the conduct of the 2025 Proceedings, given the significant issues involved in them; and that the ultimate question is not what Ms Fox knows as to the nature of the 2025 Proceedings, but what her clients know of the nature of those proceedings. It may well be that Ms Fox, if she has only recently been retained as the Cosette Parties’ solicitor, has a limited knowledge of the proceedings, but her evidence does not address her clients' knowledge of the proceedings or their ability to give instructions in respect of the Points of Defence. Indeed, a significant oddity of Ms Fox’s evidence is that there is no express reference to the fact that the first, and likely most fundamental, step in preparing Points of Defence would be to obtain instructions from her clients, by their officers, as to the position to be taken in the Points of Defence, which will be determined by the relatively straightforward questions of what the clients know to be true and must admit; do not know to be true or false and cannot admit or deny; or know to be false and can deny.

I accept, as Ms Williams points out, that Ms Fox in part addresses the question of estoppel, but it is not apparent to me that the question of estoppel here is particularly complex, where the case law as to issue estoppels is well established; or that it complicates rather than simplifies matters, at least so far as Cosette Pharmaceuticals and possibly Holdings is concerned, to the extent that the Cosette Parties may be bound by matters determined in the 2025 Proceedings. Again, I express no view as to that matter, which is not a question that needs to be determined at this stage.

I also note Ms Fox's evidence is that, if the proceeding continues in parallel with the appeal and the 2025 Proceedings and any remittal of the 2025 Proceedings, she expects the preparation of the Points of Defence would take time and cost to prepare. She estimates that the Cosette Parties would need at least eight weeks to prepare the Points of Defence, but a passage that sought to tie that observation to the exchange of further and better particulars was not read. In those circumstances, the eight-week period is at large. Although that may not have been the intent of Ms Fox’s evidence, that the orders now sought by MPG would in fact allow more than eight weeks from the filing of the Originating Process and Points of Claim for the filing of the Points of Defence, I also recognise that Ms Fox does not explain how that eight-week period is derived which, in particular, must depend on matters which are not disclosed by her evidence, including the amount of work that has been done by the Cosette Parties and their legal representatives since the Originating Process and Points of Claim were served nearly two months ago; critically, the instructions which are available from the Cosette Parties as to the matters raised in the Points of Claim; and the identification of any matters which are the subject of further inquiry. I also remind myself that, so far as the proposition is put that the Points of Defence would involve significant costs, that appears to be referable to the stay application, which the Cosette Parties chose not to pursue today. Plainly, if preparation of a Points of Defence will give rise to significant costs, then it will give rise to those costs whenever it is ordered, and they will not be more because it is ordered now than because it is ordered later.

I bear in mind the submissions made by Ms Williams, which I understand to be directed to the question of directions, rather than the question of the stay which the Cosette Parties did not seek to have heard today. Ms Williams addressed Ms Fox's evidence, and put the proposition that Ms Fox had not been cross-examined and that her evidence was uncontested. I have pointed above to the well-established proposition that the Court is not bound to accept, still less to accept in its entirety, evidence because a witness is not cross-examined. Ms Williams points to the "unique" nature of the overlap between the 2025 Proceedings and these proceedings. With respect, it seems to me that that somewhat overstates the position, where complex proceedings are not unusual in this Court, and where proceedings involving questions of issue estoppel are also relatively common.

Ms Williams submits that there would be no detriment in deferring the making of directions pending the hearing of the stay application, which is likely to take place in late March or early April. I have given consideration to that question, and I remind myself that I must address the question of directions by reference to ss 56–58 of the Civil Procedure Act 2005 (NSW). I must have regard to the dictates of justice, and to the provisions of ss 56–57. Section 56, of course, identifies the overriding purpose of the just, quick and cheap resolution of the real issues in dispute, and s 57 requires proceedings to be managed, having regard, inter alia, to their just determination. Those matters must be approached in circumstances that the Cosette Parties could have, but did not, seek to have the stay application determined today.

Here, it seems to me that there will plainly be costs incurred in the preparation of the Points of Defence, but that is an ordinary incident of complex proceedings. The preparation of the Points of Defence is the necessary next step, so far as the Cosette Parties are concerned, in identifying the issues in the proceedings, and they are presently the only Defendants who appear in the proceedings. I have not neglected the fact that, as Ms Williams pointed out, the Third and Fourth Defendants may later appear in the proceedings, but that matter seems to me to be sensibly addressed by conducting the proceedings, so far as the Cosette Parties are concerned, on the basis that they are now present and the proceedings should be conducted so as to promote their just, quick and cheap resolution concerning the parties who are present. So far as the Third and Fourth Defendants later appear, or indeed if they do not appear after the 42-day period noted above, the Court would likely make an order for the filing of their Defences. Those Defendants will, or will not, then file Defences depending upon whether they choose to participate in the proceedings, and (if they did so) they will then catch up with the position of the Cosette Parties.

I should recognise that Ms Williams also submitted that the position taken by the Third and Fourth Defendants would influence the position taken by the Cosette Parties in their Points of Defence. I should specifically reject that submission. The position in respect of a defence is straightforward. The parties who are required to file and serve their Points of Defence in the proceedings must engage in the exercise of determining whether allegations are true so they must be admitted, false so they can be denied, or not known to be true or false so they can be not admitted or denied. It is not apparent to me that the attitude of the Third and Fourth Defendants, if they choose to appear, can have any proper impact upon the position taken by the Cosette Parties as to those matters.

It seems to me that, on balance, the Court should make an order for the Points of Defence to be filed and served by the Cosette Parties, because that will clarify the position in respect of those Defendants and move the proceedings forward, and will do so whether or not the Third and Fourth Defendants ultimately choose to appear in the proceedings. So far as the time that is necessary for the filing and service of such Points of Defence, the Court has, of course, experience of complex proceedings, including proceedings involving issue estoppels; and I have regard to the fact that the Points of Claim have been in the Cosette Parties' hands for a considerable period and, as I noted above, no evidence has been led that provides any detailed account of what has been done or what remains to be done. It seemed to me that, in these circumstances, the order which MPG now accepts could be made, which allows until 15 April 2026 for the filing of Points of Defence is a reasonable one. Indeed, as events turn out, it is something of a compromise, so far as Mr O'Brien's preferred position for MPG was 1 April, with a concessionary two weeks noted above; and Ms Williams ultimately appeared to accept that Points of Defence could be ordered to be filed by 1 May.

I also bear in mind that, on some occasions, the Court will simply assume the correctness of parties’ submission that something cannot be done within a particular period, but the Court is bound to bring its own experience to bear on assessing such assertions, lest delay regularly arise from assertions as to how long matters will take. I am not persuaded, having regard to the evidence; the Court's own experience of complex proceedings; and the lack of detail and lack of reference in Ms Fox’s evidence to the Cosette Parties’ own knowledge of the matters in issue, that the estimate that 1 May is required to file the Points of Defence is correct.

I have dealt with these matters at some length. On one view, it is surprising, in a case involving sophisticated parties and sophisticated legal representatives, that a dispute of this kind arises, in respect of a Points of Claim which has been in the First and Second Defendants' hands for a considerable time, and where the difference between the parties has ultimately narrowed to be about a month between the date for which MPG contends and the date which the Cosette Parties would accept. In the result, I have ordered a date that is between the two, but I have not done so by way of any splitting of the difference, but by way of a detailed determination on the merits.

For these reasons, I will make an additional order 1 in the Cosette Parties' proposed short minutes of order, which otherwise deals with the stay application which provides that the Cosette Parties file and serve their Points of Defence by 4.00pm on 15 April 2026. I will shortly briefly adjourn to allow the parties an opportunity to confirm any common position as to whether the stay application should proceed on 25 March or 1 April 2026.

I should note, for completeness, that, notwithstanding that I had yesterday dismissed a disqualification application brought by the Cosette Parties, Ms Williams put a submission that the stay application should be listed before another named judge. I should record in this judgment, although I do not expect litigants are unaware of this, that, where a disqualification application has been unsuccessful, it is a matter for the Court and not the parties to determine the judge who will hear a matter. It is well established that it is an essential aspect of the administration of justice that parties do not get to choose their judges. I do not, and would not, allocate the stay application to a judge nominated by the Cosette Parties, because that was their preference, having brought an unsuccessful disqualification application in respect of me.

I will, however, list the stay application before Brereton J for a quite different, and proper, reason, namely that it will promote the just, quick and cheap resolution of the real issues in dispute to do so where his Honour has dates available earlier than I have dates available; and that is a proper exercise of the Court's discretion in allocating a judge to hear a particular application so as to promote its proper resolution.