AGR Science and Technology Pty Ltd v Tox Free (Queensland) Pty Ltd & Anor [2015] QDC 234

DISTRICT COURT OF QUEENSLAND CITATION: AGR Science and Technology Pty Ltd v Tox Free (Queensland) Pty Ltd & anor [2015] QDC 234 PARTIES: AGR SCIENCE AND TECHNOLOGY PTY LTD (plaintiff) v TOX FREE (QUEENSLAND) PTY LTD and ANOTHER (defendant) FILE NO/S: 874 of 2015 DIVISION: Civil PROCEEDING: Applications ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 28 August 2015, delivered ex-tempore DELIVERED AT: Brisbane HEARING DATE: 28 August 2015 JUDGE: Farr SC DCJ ORDER: 1. The application filed on 24 August 2015 is adjourned to a date to be fixed. 2. The plaintiff pay each defendant’s costs thrown away by today’s appearance, to be assessed on the indemnity basis. CATCHWORDS: APPLICATION- whether documents should be delivered in default of which summary judgement would be ordered- whether indemnity costs should be ordered. COUNSEL: PF Mylne for the defendant SOLICITORS: Colin Biggers & Paisley for the plaintiff MST Lawyers for the defendant [1] The plaintiff seeks the following orders: (a) pursuant to rule 214 of the Uniform Civil Procedure Rules (“UCPR”), that the first and second defendants deliver to the plaintiff their list of documents within seven days of the order being made; (b) in the event that the first defendant fails to deliver its list of documents within seven days of the order being made, an order for judgment in favour of the plaintiff pursuant to rule 225 subrule (2)(b) of the UCPR; (c) in the event that the second defendant fails to deliver its list of documents within seven days of the order being, an order for judgment in favour of the plaintiff pursuant to rule 225 subrule (2)(b) of the UCPR; and (d) that the first and second defendants pay the costs of the plaintiff of the application. -- 1 of 4 -- 2 [2] To understand the issues in this matter, a chronology of relevant events must be detailed and is as follows. A claim and statement of claim was filed on the 4th of March 2015. A notice of intention to defend and defence of first and second defendants filed – was filed on the 10th of April. A reply was then filed on the 22nd of May. An amended statement of claim was filed on the 19th of June. A defence to the amended statement of claim was filed on the 10th of July. On the 27th of July, the plaintiff’s solicitors wrote to the respondents’ solicitors, attaching the plaintiff’s list of documents, and requested the defendants’ list within seven days. That same day, the defendants’ solicitors requested a copy of a number of the documents in the plaintiff’s list. Two days later, the plaintiff provided copies of the requested documents in electronic form. [3] On the 7th of August, the plaintiff sent a rule 444 letter, reserving, in the event of failure to provide a list of documents within seven days of the date of that letter, its rights to seek the relief that is sought in this application. On the 13th of August, the defendants’ solicitors wrote and advised that the principals with the carriage of the matter were both then overseas, but they would be returning on the 25th of August and the 1st of September respectively, but the defendants would not be in a position to complete the list of documents until mid-September 2015. Five days later, the plaintiff wrote and advised that they will be applying to the Court seeking orders compelling the defendants to provide a list of documents within seven days, failing which entry will be sought against – entry for judgment will be sought against each of the defendants. Such an application was filed and served on the 24th of August. [4] The following day, the defendant – or defendants’ solicitors wrote and advised that one of the two principals who had been overseas was returning that day, as I understand it, or very close thereto, and the other on the 1st of September. It also, in that letter, advised that the defendant was undertaking a comprehensive search for the relevant documents, that the volume of the documents in question was substantial, that the plaintiff would suffer no prejudice on account of any delay, that the best order that the plaintiff are likely – is likely to obtain pursuant to the application is that the defendants’ list of documents be provided by the 4th of September, and offered an undertaking that the defendants’ list of documents be served – supplied by the 11th of September, that offer being made in return for the plaintiff withdrawing its application and there being no order for costs. [5] The following day, the plaintiff’s solicitors wrote again, at which time this was said: “whilst our client is pleased that your clients are prepared to give an undertaking to deliver their list of documents, it is unfortunate that such an undertaking has been proffered after our client has been put to the expense of filing its application. Your previous comment that your clients would deliver their list of documents by mid- September 2015 did not provide our client with sufficient certainty to justify our client sitting idly by and hoping that your clients did, in fact, deliver their list of documents by mid-September 2015. Further, your failure to respond to our letter of 18 August 2015 gave our client no comfort that your clients intended to deliver their list of documents within an acceptable timeframe”. [6] I note by way of an aside that the plaintiff’s solicitors at no time sought clarification of what was meant by the term “mid-September 2015”. In any event, in that response on the 26th of August, solicitors for the plaintiffs agreed to settle this particular application by agreeing to the 11th of September by suggesting that the 4th of -- 2 of 4 -- 3 September being the appropriate date, but still seeking the guillotine orders that I have already referred to. That offer, unsurprisingly, was rejected by the defendants. [7] The effect of this application, therefore, is that the best-case scenario for the plaintiffs is that the defendants will be ordered to provide a list of documents by the 4th of September 2015, that is, a period of only seven days before the date that the defendants’ solicitors have stated that the list can be supplied by. In other words, this Court’s time is being wasted arguing over a period of seven days. [8] The plaintiff has submitted that the continuing delay of the defendant in providing the list has and is continuing to cause prejudice, because it is delaying the next step in the action. Given, however, that at worst, the delay – taken at its very worst – would be from the 3rd of September, when the first seven-day period proffered by the plaintiff expired, until the 11th of August – that is a period of something less than five weeks – what, if any, prejudice that has resulted would be minimal in the extreme. I must say, I have significant doubts about the legitimacy of that submission as to the alleged prejudice, given that the plaintiff itself supplied its list of documents some 65 days after close of pleadings. That is noting, of course, that the rules allow for a maximum of 28 days. [9] In my view, there is no evidence before the Court of undue delay on the part of the defendants or the defendants’ solicitors in this matter. Given the defendants’ offer to supply the list of documents by the 11th of September, there was absolutely no good reason why this application could not have been adjourned until then or shortly thereafter. To bring it on now in such circumstances is premature in the extreme. It follows that I do not accept that the defendants are deliberately trying to delay this matter, and I have no reason to doubt that their list of documents will be provided by the date that they have indicated consistently, now, for some time and now has been brought forward to the 11th of September. [10] The defendants have submitted that the most appropriate course to adopt in this matter is to adjourn the application to a date to be fixed, and if the list of documents is not supplied, then it can be brought back to Court. I agree with that submission. It follows that the application for the guillotine orders should also be adjourned. [11] That then leaves the issue of costs. Experienced counsel for the defendants has submitted that the plaintiff’s solicitor should be ordered to pay the defendants’ costs thrown away by today’s appearance on an indemnity basis. Such an order is, of course, rare and should only be made in appropriately exceptional circumstances. There is some force to the plaintiff’s submission, but ultimately I’ve concluded that the evidence before me suggests that solicitors for the plaintiff have been acting on instructions, as has been stated in some of the correspondence that is before the Court. In such circumstances, an order against the solicitors, in my view, would be inappropriate. [12] The issue of indemnity costs, however, is a different matter. In my view, bringing the application today, in all of the circumstances, was unreasonable, wasted the time of the Court – and the defendants, for that matter – and involved an imprudent refusal of an offer to compromise. The plaintiff’s persistence in offering to compromise only on the basis of the guillotine orders remaining in place was unreasonable, given the circumstances and lack of undue delay on the part of the defendants in this matter. -- 3 of 4 -- 4 [13] It follows that I am of the view that this is an appropriate matter in which to order costs against the plaintiff on an indemnity basis. Accordingly, the order of the Court is (1) the application filed on 24 August 2015 is adjourned to a date to be fixed; (2) the plaintiff pay each defendant’s costs thrown away by today’s appearance, to be assessed on the indemnity basis. -- 4 of 4 --