Bite v Australian Guarantee Corporation & Ors [1995] QSC 241

- -A z£ 121 c:)L 1:5 /2<t(/v9 J _1r,i; 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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J No 1277 of 1994 TOM BITE and AUSTRALIAN GUARANTEE CORPORATION LIMITED and KROPP INDUSTRIES PTY LTD and BRlTlSH & COLONIAL FINANCE CORPORATION PTY LIMITli:O BRlSBANE ,.PATE 24/08/95 ORDER 1 REVISC:D CCPIES ISSUED State Rc;)orti:1g G!Keau ) Plaintiff First Defendant Second Defendant Third Party -.Jl/1 Floor, 'flw L:nv Court.~. Gt•orge Street, Brish:mt•, Q. .J()()() Tdep/,011e: (07) 227 .JJ60. Facsimile: (()7) 227 5532 -- 1 of 5 -- 240895 mmb & hcl (de Jersey J) HIS HONOUR: This is an application on behalf of the plaintiff to dispense with the Certificate of Readiness and to have the action entered on to the call-over list. Justice White gave it priority some time ago. Opposition comes principally from the second defendant who wants to deliver an amended defence and to interrogate. The whole problem arises because Mr Justice Mackenzie ordered on 22 May 1995 that outstanding matters be completed by specified dates, which passed by. His Honour then set out a timetable 10 20 for the future conduct of the matter, in short, with which the second defendant, and to a limited extent the third party, now ( effectively quarrel. The second defendant's justification for this is that matters only recently came to light, but it is asking for an indulgence in the end. As to the proposed amendment of the defence I thought for a time that the matters dealt with in paragraphs SA to SC could be argued, in any event, even if not pleaded, as matters of fact going to contradict Mr Bite's claim of ownership. I may or may not be right about that. I would have thought that they could, without the necessity to characterise those matters as giving rise to estoppel or whatever, but at the moment, anyway, I am asked by Mr O'Sullivan to take into account the vagueness of the allegations contained in those proposed paragraphs, especially in so far as Mr Kropp on behalf of the second defendant is not shown to be involved directly in the matters of fact alleged against the defendant, in particular those in paragraphs (vi) to (ix) on page 3 of the proposed amended defence. ORDER 2 30 50 60 -- 2 of 5 -- 240895 mmb & hcl (de Jersey J) certainly the Verweyan Doctrine is itself vague and somewhat difficult to understand and that would ordinarily, I think, have persuaded me to let this amendment be made reserving further argument for the trial, but looking at the matter more broadly, because of what I perceive to be some probably substantial difficulties about the legal argument raised by those proposed paragraphs, taking into account the intention behind Mr Justice Mackenzie's order and the lack of any blame in the plaintiff, as I see the matter, for the second defendant's current position, I refuse leave to amend the defence of the second defendant and I also refuse leave to the second defendant to deliver the interrogatories that are proposed to be delivered. These orders must be given an appropriate level of respect when they are made. If they are made and then simply ignored, or substantially ignored, then that calls into question the whole point of the Court assuming any active obligation in the supervision of these cases, such as Mr Justice Mackenzie properly took upon himself in May. If I thought that there was a really very important point which the second defendant needed to ventilate properly to explore its rights, then I would have been inclined to give leave notwithstanding non-compliance with the order or inconsistency with the intention of the order, but I am not persuaded of that and I suspect, in any event, that these sorts of factual issues can be raised anyway through the cross-examination of Mr Bite at least. So, I refuse leave to amend and I refuse leave to deliver interrogatories. ORDER 3 10 20 30 40 50 60 -- 3 of 5 -- 240895 mmb & hcl (de Jersey J) The end point for all of that is the order of Mr Justice Mackenzie, which I think should operate as it was intended. I will dispense with the Certificate of Readiness and enter the action on the call-over list with priority. I might say that I have some reservations about the priority it has been given. That was related apparently to Mr Bite's personal financial difficulties, but I fear that the whole thing has rather got out-of-hand with relation to costs. It concerns an old Jaguar motor vehicle said to be worth about $50,000 or $60,000. It seems extraordinary that it has to be litigated about in this Court, but it is here now and it has progressed to a late stage and I think the best thing one can do with this action is to get it on for trial and over and disposed of. The other thing is mediation. I think mediation should occur. I won't make an order about it lest I unintentionally increase costs by that, but I strongly recommend that the parties seek to negotiate actively to avoid a trial at all costs. On the plaintiff's summons I dispense with the Certificate of Readiness, enter the action on the call-over list with priority and I dismiss the second defendant's summons. I should add that I will not give leave to you, Mr Philp, for the third party to amend your pleading, either, again consistently with the intention and spirit of the order of Mr Justice Mackenzie. ORDER 4 10 20 30 r I r C 40 L 50 60 -- 4 of 5 -- ( ~- 240895 mmb & hcl (de Jersey J) HIS HONOUR: I am going to have to be decisive about this. I will order that the second defendant pay the plaintiff's and the first defendant's costs, to be taxed, on the plaintiff's summons and I will dismiss the second defendant's summons with costs, to be taxed. ORDER 5 10 20 30 40 50 60 -- 5 of 5 --