Box Information Technology Pty Ltd v Crystalaid Manufacture Pty Ltd (No 4) [2012] QDC 295

1 [2012] QDC 295 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 3066 of 2011 BOX INFORMATION TECHNOLOGY PTY LTD Plaintiff and CRYSTALAID MANUFACTURE PTY LTD Defendant BRISBANE ..DATE 04/09/2012 ORDER CATCHWORDS Proceeding on the Commercial List - slippage in completing steps threatens to render fixed trial dates impracticable - whether plaintiff justified in not completing steps by date it had indicated willingness to accept because defendant and third party could not agree on the timetable - costs thrown away when a mention of which the plaintiff had no adequate notice had to be revisited -- 1 of 6 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court makes an order in terms of the initialled draft. It undoes most of the work done yesterday at a hearing in which the plaintiff didn't participate, except for the provision in paragraph 8 providing for applications that evidence be given by telephone or similar on the 27th of September 2012, which has been fixed by a still earlier order as a mention date for the proceeding. There are applications for costs thrown away as a result of yesterday's exercise, which, to a certain extent, was wasted. It's not at all clear for the moment that the plaintiff, which appears to be the party in the gun, so to speak, should have to pay those costs. The hearing came about, according to my impression which is subject to correction, because the third party became concerned about slippage in the schedule of steps to lead to a trial for six days commencing the 9th of October 2012, the last two days being 22nd and 23rd of November. On the 13th of August at an earlier mention it had been anticipated that the parties would agree on directions and Mr Hutchinson, representing the plaintiff, indicated his agreement so that the standout party was the defendant. Its continuing failure to agree in a formal way with the draft order prepared on the 13th of August seems to me to be what led Mr Bradley to bring the application on. Advice of that went to Mr Hutchinson very much at the last minute, he not having been involved in earlier activities generating it. He says the relevant e-mail went from my associate at around 4 -- 2 of 6 -- 3 ORDER 1 10 20 30 40 50 60 p.m. last Friday, and wasn't opened by him until after the hearing yesterday had occurred. My expectation that the plaintiff would be content with the order yesterday, given that it did no more than fix later dates for the taking of particular steps, proves erroneous. Rightly or wrongly, Mr Hutchinson took the approach that steps were to be taken only on the basis that all preceding steps had been completed. Matters within his purview, as I understand it, were also put on the backburner, awaiting provision by the defendant of copies of documents disclosed by it to complete the disclosure process. That still hasn't happened. By yesterday's order it was to happen by tomorrow, that's not being altered today. ... HIS HONOUR: Mr Hutchinson now presents a catalogue of difficulties. He says that time which he'd allocated to attend preparation for this proceeding could not be used because he didn't have the documents. He complains that a director of the plaintiff, said to be a crucial witness, was available last week to provide assistance and perhaps complete his statement of evidence, but there were no documents from the defendant to consider. That person is supposedly not going to be available for a while. More concerning is the engagement of senior counsel whose availability appears to be uncertain. It's anticipated that -- 3 of 6 -- 4 ORDER 1 10 20 30 40 50 60 he would not be available for the trial dates fixed by the Court. It's hardly impressive from the Court's point of view to have engaged counsel unavailable to attend on trial dates that have been fixed for months in a sensitive period towards the end of the Court year when it's next to impossible to find replacement dates. My view is that a matter ought not to remain on the commercial list unless it's possible to fix and retain trial dates, particularly so whereas the plaintiff is unable to meet them for reasons that have nothing to do with some unanticipated last minute crisis. It seems possible, for the moment, to preserve the November dates and allocate the required six days, with them as the beginning dates. ... For the assistance of the parties it would be salutary for me to indicate that should something go wrong with the revised arrangements for trial dates, it would seem to me inappropriate that the matter remain on the commercial list. A key purpose of the list is to fix early trial dates and manage the proceeding so that they come true. The original listing of this matter owed much to the defendant's application for security for costs, which Mr Hutchinson at the time successfully fended off, although substitute arrangements in the form of a personal undertaking from the principal director were put in place on 3 May 2012 when the trial was fixed for that week of 8 October 2012: [2012] QDC 292. For other hearings, see [2012] QDC 106 (19.4.12); [2012] QDC (21.6.12). -- 4 of 6 -- 5 ORDER 1 10 20 30 40 50 60 It's important to get the evidence in chief of witnesses for all three parties in documentary form. Apropos the issue of evidence by telephone and the like, it seems to me that's unlikely to be appropriate for evidence in chief. It may or may not be appropriate in the cases of particular witnesses for cross-examination. Judgment will have to await availability of their evidence in chief. I made inquiry as to whether the directions ordered today should provide for response affidavits or statements. Mr Bowden, whose client I would guess is the most likely to be affected by surprising rebuttal evidence, was not anxious to have any provision in the order to require its being revealed in written form in accordance with a timetable well in advance of the trial - being prepared to take his chances about what might emerge at trial. I can see the benefit of keeping the order as simple as possible and avoiding too much proliferation of documentation. But of course there's nothing in the way of a party wanting to present rebuttal evidence getting it into written form and providing it to the others. What I've said about the costs of yesterday which are thrown away is intended to indicate that they're reserved because the Court has no proper idea for the moment about the rights and wrongs of the situation. One can understand why Mr Hutchinson may have taken the approach he did that given what he says is delay by the defendants made it appeared that the timetable envisaged on the 13th of August, which never got enshrined in -- 5 of 6 -- 6 ORDER 1 10 20 30 40 50 60 the Court's order, had been abandoned and with it, by an unfortunate side wind, the trial dates next month. Although the next mention's the 27th of September, the parties have liberty to apply. With the exception of a few days in Bundaberg, I will be around, so I invite them, if there's a difficulty, to approach the Court, and that invitation would apply to the situation Mr Hutchinson said he was in last week with the gentleman from Hong Kong waiting for documents. I'd have been amenable to an approach from him revealing difficulties such as that which might have made it appropriate to make some order requiring that the documents be produced immediately, but that's water under the bridge. ----- -- 6 of 6 --