Body Corporate Scheme for Arila Lodge v Thompson [2020] QDC 134

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate Scheme for Arila Lodge Community Titles Scheme 14237 v Thompson [2020] QDC 134 PARTIES: BODY CORPORATE SCHEME FOR ARILA LODGE CTS 14237 (plaintiff) v EMMA THOMPSON (defendant) FILE NO/S: 2865 of 2018 DIVISION: Civil PROCEEDING: Mention ORIGINATING COURT: District Court of Queensland DELIVERED ON: 16 June 2020 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 16 June 2020 JUDGE: Porter QC DCJ ORDER: 1. Leave is granted to the Defendant to file the Affidavit of Emma Thompson sworn on 16 June 2020 exhibiting the documents directly referred to in that affidavit only, by 4.00pm on 23 June 2020. 2. The Defendant notify the Plaintiff of any allegations in the Defence filed 20 January 2020 which will not be maintained at trial, by 4.00pm on 30 June 2020. 3. The Defendant file and serve an affidavit which exhibits any such letter, by 4.00pm 8 July 2020. 4. The time for the Plaintiff to file and serve any affidavits it wishes to rely upon at the trial as its evidence-in-chief in reply to the Defendant’s evidence-in-chief is extended to 4.00pm on 17 July 2020. 5. The Plaintiff file a trial book containing the pleadings and the affidavits it intends to rely upon as its evidence- in-chief by 4.00pm on 24 July 2020. 6. The Defendant file a trial book containing the affidavits it intends to rely upon as its evidence-in-chief by 4.00pm on 24 July 2020. -- 1 of 3 -- 2 7. The parties exchange their written openings by 24 July 2020. 8. No party may lead any evidence-in-chief other than that contained in an affidavit pursuant to these orders without the leave of the Court. 9. The Plaintiff and the Defendant are to confirm with the other party which witnesses they require at trial for cross-examination by 4pm on 10 July 2020. 10. Costs of this directions hearing are costs in the cause. COUNSEL: B Strangman (plaintiff) C Londy (solicitor) (defendant) SOLICITORS: Grace Lawyers (plaintiff) Londy Lawyers (defendant) [1] This matter was last before me on the 22nd of May 2020. On that day, I made some modest directions to get the matter to trial. The history of the matter is one which is not enviable in terms of the time taken and resources spent. My observations from the last occasion should be taken as read and these observations should be read with them. [2] Today, Mr Londy appeared again for Ms Thompson. He had filed an affidavit of Mr Robinson by the due date as required by my orders on the 22nd of May (which was that the defendant file and serve any affidavit she wishes to rely upon at trial as her evidence in chief by the extended due date of 12 June 2020). Mr Londy failed to file a further affidavit of Ms Thompson she seeks to rely upon at trial. He provided it today some 4 days late. Ordinarily one might not worry too much about 4 days, but in the history of this matter it was an unfortunate non-compliance, especially as the matter of failure to comply with the order wasn’t raised before the time for compliance expired. [3] In any event, Mr Strangman took no point about it. That affidavit unfortunately doesn’t exhibit any of the documents to which it refers and nor, should I say, does the affidavit of Mr Robinson which attaches an expert report of cost assessment. [4] Mr Londy flagged that he wishes to tender documents in his client’s case. I asked him how those documents would get into evidence unless they were tendered by consent, and it seemed Mr Londy envisaged they could be tendered through other witnesses to be called. I’m not certain if I previously made an order that limits a party in this case to the evidence in chief contained in the affidavits filed in -- 2 of 3 -- 3 accordance with my orders but it has been clear for months that this trial was to proceed on the basis of evidence in chief by affidavit. To make it crystal clear what in my view was the plain intention of the order all along, (and of course there might have been an order to this effect previously made) I order that neither party be able to lead any evidence in chief other than that contained in the affidavits filed in accordance with the orders made in this court except with the leave of the court. [5] Mr Londy flagged the fact of some late disclosure and flagged (again) that he is contemplating bringing an application for assessment of the costs which are in fact the subject of these proceedings going to trial in two months’ time. However, he put forward no directions which would take account of either of those matters and get the matter to trial and had not sought leave to file any application about that. [6] It seemed to me therefore that the correct course was to make directions to get this matter to trial. Mr Londy was conscious of my direction that no application be filed in this proceeding without my leave being sought, and was concerned about the prospect of the application that might be contemplated – the third party cost assessment – being seen to be a contempt of that order. It’s not the role of the court to give advisory opinions. But, unless it’s an application filed in this proceeding, it doesn’t seem to me to be in breach of the direction that I made. Whether such an application will be an abuse of process given the history of this matter, the subject matter of this trial and the fact it is going to trial on the 17th of August 2020, is entirely another matter. [7] At the last occasion, as set out in my reasons, I said words to this effect at [6] (having extended the time for filing of Ms Thompson’s affidavits in chief by 3 weeks): In that time I expect Mr Londy to identify what the real issue he wants to advance in the defence is, and if an amended defence can’t be agreed, to file the affidavit evidence that supports the case on those matters that he wishes to advance and communicates clearly to the other side the parts of the existing defence that would not be pressed. The plaintiff will then be in a position to work out, by the 3rd of July, what, if any evidence in chief in reply is required, and then I will amend the date for the question notification of cross examination/witnesses required for cross examination until the 10th of July. [8] In the over 3 weeks since the last occasion, Mr Londy has not been able to work out what factual matters in the defence are maintained, and although there was no formal direction that he did so, the failure of the defendant to do that in the time allowed once again delays the final and efficient articulation of the issues in dispute in this difficult and disproportionately expensive case. To address that, I make a direction that the defendant notify within 14 days the allegations in the defence which will not be maintained at trial. That somewhat delays again, as I have said, finalising the issues. But it seems the most efficient way to proceed from here. [9] I otherwise make the directions that I explained in the course of the directions hearing to get the matter ready for trial. All I can add is my own imprecation that the parties focus on resolving this dispute at the trial which is now only two months away in front of a Judge who is eminently capable of finally quelling these disputes. -- 3 of 3 --