Brandenburg Investments Pty Ltd (as trustee) v Jim Barlow Cairns Pty Ltd & Ors [2000] QSC 231

"$" 9o10 f ILf:, bC oo/ )3{ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. ~ It.... SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 10 of 1998 -----··- - REViSED C)P!Et; !'.3S 1 State Pf.~;c,r~tr: 1J 8u( :·n·J BRANDENBURG INVESTMENTS PTY LTD (ACN 081 205 772) in its capacity as trustee of the BM and JAB FAMILY TRUST and MILPERA INVESTMENTS PTY LTD (ACN 071 143 407) in its capacity as trustee of the GREG KERN FAMILY TRUST Plaintiffs and JIM BARLOW CAIRNS PTY LTD (ACN 009 952 149) and WOLRAB PTY LTD (ACN 009 952 532) and TREVOR JAMES BARLOW and MARGARET THERESA BARLOW and BABFOLD PTY LTD (ACN 010 492 216) and MARK BOULTER CAIRNS .. DATE 15/05/2000 JUDGMENT 1 First Defendants Second Defendants Third Defendant Fourth Defendant 11"',,., The Law Courts, (;(•m·~e Sired, Brishanc, Q. -4000 Telephone: (07) Jl.-t7 -tJ{,0 Fax: (07) J.!-47 5.5J2 -- 1 of 3 -- 15052000 D.1 T18/JFG M/T CNS310/2000 (Jones J) HIS HONOUR: This is an application by the defendant for cos~s associated with applications for disclosure of documents to be made. The application initially was made on 14 July 1998. At about the same time, there was an application by the plaintiff for the striking out of parts of the defendants' pleadings. That strike-out application was partially successful. It led to some further applications for striking out amended pleadings which were finally resolved by consent order on 17 April 2000. The slow progress in relation to the finalisation of pleadings provoked the defendant to make a request in January 2000 for disclosure of documents to be made in respect of the pleadings. Disclosure should have been made at that time, particularly having regard to the terms of Rule 211 of the Uniform Civil Procedure Rules which reads under "duty of disclosure 11 , "A party to a proceeding has a duty to disclose to each other party, each document in possession or under the control of the first party directly relevant to an allegation in issue in the pleadings and if there is no pleadings directly relevant to a matter in issue in the pleadings. Subrule 3 provides that an allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of." As at February 2000 when the last request by the defendant was made, there were matters that were in issue. There are other matters which were still the subject of discussion between the parties. On behalf of the plaintiff, Mr Morrow claims that there was an understanding dating back from 1998 applications to the effect 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 3 -- 15052000 D.l T18/JFG M/T CNS310/2000 (Jones J) that disclosure would be made when the pleadings disputes had been finally resolved and he claims that that was not the situation in February 2000. So the issues between the parties on this question of costs are really joined on the question of whether the rules which I have just referred to should be applied strictly or whether the understanding which remained alive for a period of one and a-half years should be respected. I have some knowledge of the extent of the allegations and counter allegations raised in the pleadings. It seems to me that on the question of applications for disclosure, the costs associated with them will be, in relative terms, quite minor. In respect of the 1998 application, the question of disclosure was not specifically dealt with because of the outcome of the dispute on the pleadings and now, it is a matter simply of a renewed application which was put to one side by the consent order relating to pleadings on 17 April. The costs that we are arguing about in relative terms are quite minor. My orders will be that the costs associated with the applications for disclosure should be costs in the cause. I make an order by consent the plaintiff make disclosure of all relevant documents within 21 days from today's date. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 3 --