Eagle Star Trustees Ltd & Permanent Trustee Company Ltd v White Industries (Qld) Pty Ltd & Ors [1993] QSC 431

0 0 0 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 AMBROSE J No 2600 of 1989 EAGLE STAR TRUSTEES LIMITED First Plaintiff and PERMANENT TRUSTEE COMPANY LIMITED Second Plaintiff () and WHITE INDUSTRIES (QLD) PTY LTD and HENNESSEY GLASS & ALUMINIUM SYSTEMS PTY LTD and FORD MOTOR COMPANY and FORD GLASS AND METAL INC -- A...,.L_rr,., ........_n.. ... T_.,.ow •• _l"!.-. ... ....a. .... ~-----_r!.L- ___ .. _.... _._._____ -·--- __ • - First Defendant Second Defendant Third Defendant Fourth Defendant -- 1 of 10 -- PITTSBURGH PLATE GLASS COMPANY and WILLIAM JAMES JOB and HARVEY DAVID RUSSELL and GRAEME J DANIELS and WILLIAM JOB & ASSOCIATES PTY LTD (IN LIQUIDATION) and GRAHAM BELL BRISBANE .. DATE 08/11/93 .. DAY 1 2 Fifth Defendant Sixth Defendant Seventh Defendant 10 Eighth Defendant Ninth Defendant 20 0 Tenth·Defendant 0 30 0 40 0 50 60 -- 2 of 10 -- 0 0 0 0 81193 CAJ (Ambrose J) .US HONOUR: I grant leave to Permanent Trustee Company Limited to be added as a second plaintiff in action number 2600 of 1988 between Eagle Star Trustees Limited, plaintiff; White Industries (Qld) Pty Ltd, first defendant; Hennessey Glass and Aluminium Systems Pty Ltd, second defendant; Harvey 10 David Russell, seventh defendant, William Job & Associates Pty Ltd (In Liquidation), ninth defendant and Graham Bell, tenth defendant. 20 30 40 50 60 3 -- 3 of 10 -- 081193 adt (Ambrose J) HIS HONOUR: I order that the plaintiff, Permanent Trustee Company Limited, make discovery of documents relevant to the issues forthwith. I direct that it provide particulars of damages which it claims, also forthwith. I direct also that the amended statement of claim be served forthwith if it has not already been served. MR DOYLE: I understand it has been, Your Honour. ORDER 4 10 0 30 0 ~0 50 60 -- 4 of 10 -- 0 0 0 0 ----·--·---- 081193 CAJ (Ambrose J) I will grant leave subject to these conditions, firstly, with respect to the proposed amendments to paragraph 10(b) and read with 13A(b), I grant leave to make that amendment subject to the provision of particulars as sought with respect to the shattered glass. With respect to the amendment sought to 10A(b), that is, to raise the implied term of merchantable quality, I will reserve my decision on that application pending a more precise definition of the term "merchantable quality". I have indicated it has, on the cases, a large number of meanings and I will reserve my decision on that application until I understand precisely what the contractual term is. With respect to 14B(d) I grant leave to make that amendment with the other amendments to 14B subject to the provision of particulars of the acceptance of the benefit pleaded in 1 4B (d). With respect to 18A I grant leave to make that amendment and the other amendments that go with it, subject to deleting from paragraph 18A(a) the dimension of 6 millimetres from 18A(a), so that that paragraph reads, "(a) which was tempered or toughened glass." I permit the other amendments sought generally without the provision of further particulars. 5 10 20 30 40 50 60 -- 5 of 10 -- 081193 CAJ (Ambrose J) HIS HONOUR: I should make the order that the costs thrown away by the late amendments and the appearance to argue, I think, should be borne by the plaintiff. 6 10 20 ~ ~ 30 ~ 40 ~ 50 60 -- 6 of 10 -- () 081193 adt (Ambrose J) HIS HONOUR: It seems to me that with respect to the two bundles of documents on liability and quantum - it seems to me that upon their delivery forthwith, the defendants ought be able to indicate by 4 p.m. on Wednesday what documents they are prepared to admit without having them formally proved, and they ought advise the plaintiff what documents out of both bundles relating both to liability and quantum they require to be proved. With respect to the quantum aspect, it seems to me that the plaintiff ought deliver all reports from the experts that it proposes to call, presently in its possession, forthwith. If () there are statistical reports that for some reason have not been provided to the other defendants, they should be provided () 0 forthwith. In my view, there is no obligation upon them to obtain from a witness, whether he be expert or otherwise, a statement or report before they call him. If they propose to call an expert to give expert evidence and they do not have a report, they are under no obligation to obtain one first. They will run the risk, of course, of the defendants asserting that they have been taken by surprise and requiring a short adjournment to obtain what expert advice they are able to obtain. I think that is the way matters stand. It seems to me that there is nothing really that I can or ought do with respect to that aspect of the plaintiff's quantum claim foreshadowed. It seems to me, however, that all parties ought to have exchanged and handed over to the other ORDER 7 10 20 30 40 50 60 -- 7 of 10 -- 081193 adt (Ambrose J) Jarties all expert reports in their possession from experts they propose to call. Of course, if the defendants do not wish to obtain reports or statements from their experts, they do not have to hand copies of them over. They will have the ,. same problem, however, with respect to adjournments and so on and of the costs the plaintiff will have if the plaintiff calls an expert witness to give evidence without the other side being in a position to obtain instructions or expert advice on that matter before the witness is actually called. It seems to me that the defendants, to the extent that they have not provided expert reports, ought provide expert reports forthwith as soon as those expert reports are within their possession. I have reservations about making any order that reports of experts to be called be provided by any specific time. It seems to me they have a right to call experts without getting reports, so I can't see what the basis is for making those orders. 10 ~0 0 30 0 I simply order that reports from experts at this late stage of preparation of the trial be provided forthwith upon receipt of 40 0 those reports from the experts. It goes without saying that any reports in the possession of the defendants now, or in the possession of the plaintiff now, ought be provided forthwith. With respect to the statement relating to quantum, I take the view that the plaintiff at this stage ought be able to provide his quantum statement forthwith. I say forthwith - certainly today. Is there any problem in providing the quantum statement today? ORDER 8 50 60 -- 8 of 10 -- 081193 adt (Ambrose J) MR DOYLE: Only in having it photocopied. It is being done now. HIS HONOUR: It can be provided to the defendants by lunch time, could it? MR DOYLE: There are just so many of them. We propose giving them all today because we are giving them a schedule. 0 HIS HONOUR: You will have the quantum statement, together with the other annexures and so on to be attached to it. That 0 will be available for delivery, what, by 4 p.m. today? MR DOYLE: Yes, Your Honour. HIS HONOUR: I will make that order, that this statement be 0 given to the other parties. 0 ORDER 9 10 20 30 40 50 60 -- 9 of 10 -- 081193 CAJ (Ambrose J) HIS HONOUR: I will give liberty to deliver those amended contribution .notices to the ninth defendant forthwith and I will give the other parties to whom they are delivered liberty to deliver defences to those contribution notices forthwith or to the statement of claims delivered upon contribution notices forthwith. HIS HONOUR: I will simply reserve the costs of delivering further notices. HIS HONOUR: The costs will be costs in the cause other than the costs thrown away by the amendment. 1 0 10 20 0 0 30 0 40 0 50 60 -- 10 of 10 --