EPAS Ltd v James & Ors; TCSSL v James & Ors [2007] QSC 162

SUPREME COURT OF QUEENSLAND CITATION: EPAS Ltd v James & Ors ; TCSSL v James & Ors [2007] QSC 162 PARTIES: EPAS LIMITED (ACN 010 642 314) (applicant/plaintiff) v TERRANCE ROBERT JAMES (first defendant) and JOHN KENNETH SHEILDS (second defendant) and JEFFREY JOHN JAMES (respondent/third defendant) and GERALD LEONARD PARKER (fourth defendant) and HENRY ANTHONY GREENROD (fifth defendant) and MERVYN J HEAD, JOHN R CHEEL and KENNETH J THOMPSON (sixth defendants) and OMITTED (seventh defendant) and AMP GENERAL INSURANCE LIMITED (ACN 008 405 632) (eighth defendant) TRUST COMPANY SUPERANNUATION SERVICES LIMITED (applicant/plaintiff) v TERRANCE ROBERT JAMES (first defendant) and JOHN KENNETH SHEILDS (second defendant) and JEFFREY JOHN JAMES (respondent/third defendant) and GERALD LEONARD PARKER (fourth defendant) and -- 1 of 4 -- 2 HENRY ANTHONY GREENROD (fifth defendant) and MERVYN J HEAD, JOHN R CHEEL and KENNETH J THOMPSON (sixth defendants) and EPAS LIMITED ACN 010 642 314 (respondent/seventh defendant) and AMP GENERAL INSURANCE LIMITED (ACN 008 405 632) (eighth defendant) FILE NO: S3543/2000 (TCSSL v James & Ors) S3544/2000 (EPAS v James & Ors) DIVISION: Trial Division PROCEEDING: Applications DELIVERED ON: Orders made 3 July 2007 Reasons given 5 July 2007 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 3 July 2007 JUDGE: Wilson J ORDER: Applications adjourned to a date to be fixed CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – OTHER MATTERS – the plaintiff seeks judgment against the third and seventh defendants, who are not actively defending the action, on the basis of deemed admissions – the eighth defendant, which is actively defending the action, has outstanding applications to withdraw deemed admissions – the eighth defendant argued that if judgments were entered against the third and seventh defendants there would be the potential for inconsistent findings of fact at trial in relation to facts contested by the eighth defendant – whether to grant judgment – whether to adjourn the applications to after the outstanding applications to withdraw deemed admissions are determined Uniform Civil Procedure Rules 1999 (Qld) r 166, r 189, r 190, r 292 Termijtelen v Van Arkel [1974] 1 NSWLR 525, cited COUNSEL: R M Derrington SC for the applicant plaintiff No appearance for the respondent third defendant -- 2 of 4 -- 3 No appearance for the respondent seventh defendant P L O’Shea SC for the eighth defendant SOLICITORS: Corrs Chambers Westgarth for the applicant plaintiff No appearance for the respondent third defendant No appearance for the respondent seventh defendant Minter Ellison for the eighth defendant [1] Wilson J: On 1 June 2007, in proceeding S3543/00, the plaintiff TCSSL filed applications against the third defendant Jeffrey John James (“JJ James”) and the seventh defendant EPAS Limited seeking judgment pursuant to rule 190 or alternatively rule 292 of the Uniform Civil Procedure Rules (“UCPR”). On the same date, in proceeding S3544/00, the plaintiff EPAS Limited filed an application against the third defendant JJ James seeking judgment pursuant to rule 190 or alternatively rule 292. [2] Although duly served with the applications, those defendants did not appear when the applications were called on for hearing. A letter from JJ James to the plaintiffs’ solicitors continuing to “deny and refute all allegations raised against” him was tendered as an exhibit. [3] In each proceeding there are applications pending by the plaintiff that certain documents be admitted into evidence as authentic and prima facie evidence of the truth of their contents (filed on 13 February 2007) and by the eighth defendant AMP General Insurance Limited for leave to withdraw deemed admissions made in respect of certain notices to admit (filed on 19 February 2007). Those applications have for some weeks been listed for hearing on the Civil List over four days commencing 24 September 2007. [4] When the applications for judgment came on for hearing on 3 July 2007 the eighth defendant applied for their adjournment, and after quite lengthy submissions by senior counsel for the eighth defendant and senior counsel for the plaintiff I adjourned them to a date to be fixed, to be brought on for review after the hearing and determination of the applications referred to in paragraph 3 of these reasons. What follows is a short statement of my principal reasons for doing so. [5] EPAS filed a defence in S3543/00 on 15 August 2000. On the same day JJ James filed a defence in each proceeding. These defences contain only bare denials of the relief claimed and do not purport to respond to the allegations of fact in the statement of claim. The plaintiff in each proceeding filed and served a further amended statement of claim on 23 December 2003, but neither EPAS nor JJ James filed an amended pleading in response. [6] It was submitted by senior counsel for the plaintiff that EPAS and JJ James are thus deemed to have admitted the facts alleged against them pursuant either to r 166(1) or to r 166(5) of the UCPR. [7] In addition the plaintiff in each proceeding served on these defendants several notices to admit facts. There was no response, with the consequence that these defendants are deemed to have admitted the facts specified in the notices to admit pursuant to r 189(2) of the UCPR. -- 3 of 4 -- 4 [8] On the basis of these various deemed admissions the plaintiffs sought declarations that these defendants had on divers occasions breached their duties and caused losses to the trust, and that they are liable to make good the losses, and – “Pursuant to rule 190 or, alternatively, rule 292 of the Uniform Civil Procedure Rules, judgment … for damages for negligence and equitable compensation for breach of trust (including interest) to be assessed by this Court at the trial of the proceeding.” [9] Senior counsel for the eighth defendant submitted that the applications ought to be adjourned because the same facts are in issue in the claim in each proceeding against it as eighth defendant, and there is a possibility of inconsistent findings on those facts. He drew attention to that part of the statement of claim in S3543/00 where the paragraphs in which the impugned conduct of EPAS and its directors and the vicarious liability of EPAS for the conduct of its directors and the resulting losses are drawn together as the basis of liabilities against which the eighth defendant is alleged to be liable to provide indemnity pursuant to policies issued by it. He submitted that the issues of fact are inseparably interwoven, and that accordingly the Court should not determine the applications for judgment in advance of the trial.1 [10] During the hearing of the adjournment application counsel for the plaintiffs announced that the plaintiffs would not persist with the applications for judgment, but only with the applications for declarations of misconduct causing losses. In my view this amounted to an application for determination of those issues in advance of the trial, and I had misgivings about the appropriateness of such a course in all the circumstances, and about what would be achieved if it were adopted, given that the plaintiffs already had the benefit of deemed admissions by these defendants, upon which they could rely at trial to prove the misconduct causing losses. [11] The force of the eighth defendant’s submissions is weakened somewhat by it, too, being deemed to have admitted many (if not all) of the same facts by reason of non- response to notices to admit. As senior counsel for the plaintiffs submitted, no evidence was put before the Court to show that these facts are genuinely disputed by the eighth defendant. Senior counsel for the eighth defendant assured the Court that on the hearing of its applications for leave to withdraw the admissions it would produce such evidence. [12] In all the circumstances I concluded that the potential (if any) for inconsistent findings of fact should be assessed in the light of the outcome of the applications referred to in paragraph 3. Accordingly I adjourned the applications to a date to be fixed, after those other applications have been determined. [13] I record my concern at the slow pace at which these actions are proceeding towards trial and the amount of resources being expended on interlocutory applications. It is regrettable that the principal protagonists, ASIC which is conducting the litigation in the name of the plaintiffs2 and the eighth defendant, seem so far to have been unable or unwilling to resolve issues without interlocutory stoushes in the Court. Large and complex as the claims are, I have difficulty in accepting that the issues in dispute could not be narrowed by pragmatic discussions between those parties. 1 Termijtelen v Van Arkel [1974] 1 NSWLR 525, 532. 2 See EPAS Ltd v AMP General Insurance Ltd [2007] QCA 212. -- 4 of 4 --