Ashware Ltd v Farmer Johnson Aquaculture Ltd & Ors [1993] QSC 264

(J 0 ' . State eporting Bureau TRA~JSCP.JP~f OF ~PROCEEDINGS (Copyright in this transcript is vested in the Crovvn. Copies. thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) ·-- REVIS::.o COPIES iS.SUf:D Stat9 Rtportir.g Elurea~ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J No ·1464 of 1991 ASHWARE LIMITED and FARMER JOHNSON AQUACULTURE LIMITED FARMER JOHNSON RESTAURANTS PTY LIMITED DAZMAC PTY LTDMOBARI PTY LIMITED FARMER JOHNSON BAKERIES PTY LIMITED FARMER JOHNSON LIMITED WOODS AND JOHNSON DEVELOPMENTS PTY LIMITED SAVELLA PTY LIMITED SIGRID PTY LTD JOHNSON BULLDOZER CONTRACTING PTY LIMITED JFM SYSTEMS PTY LIMITED JFM CONSTRUCTIONS PTY LIMITEDKATHLEEN DRIVE STONEFRUIT GROWERS SYNDICATE NO 1 PTY LIMITEDMOGARI PTY LIMITED JOHNSON FARM MANAGEMENT PTY LIMITED AUSTRALIAN BLUEBERRY COMPANY PTY LIMITED CORINDI BLUEBERRY GROWERS PTY LIMITEDFARMER JOHNSON DISTRIBUTIONS PTY LIMITEDFARMER JOHNSON CITRUS LIMITED JFM INVESTMENTS PTY LIMITEDWINHOLM PTY LIMITED Date b't 0 1 1. ~ First Plaintiff JOBHILL PTY LIMITED IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JOBHILL TRUSTGREGORY MORRIS JOHNSON FRANCIS EDWARD JOHNSON _______ A_._'f_~T-------~·-~.1":_.,_,. __ /""__.,.,_J.. • .~.-. •• ,, __, 1""1 .•. •'· -,~ .. -- 1 of 7 -- ANTHONY JAMES JOHNSON and PHILLIP ARTHUR HENNESSY and MICHAEL JQSEPH DWYER -' and EQUUS FINANCIAL SERVICES LIMITED and· NICK RUSSO and ALEXANDER ROBERT McKAY MACINTOSH BY QRIGINA~ A~TIO~ EQUUS FINANCIAL SERVICES LTD and PHILLIP ARTHUR HENNESSY and MICHAEL JOSEPH HENNESSY and RURAL FINANCE PTY LTD and ASHWARE LIMITED and FARMER JOHNSON AQUACULTURE LIMITED FARMER JOHNSON RESTAURANTS PTY LIMITED DAZMAC PTY LTD MOBARI PTY LIMITEDFARMER JOHNSON BAKERIES PTY LIMITED FARMER JOHNSON LIMITED WOODS AND JOHNSON DEVELOPMENTS PTY LIMITED SAVELLA PTY LIMITED SIGRID PTY LTD JOHNSON BULLDOZER CONTRACTING PTY LIMITED JFM SYSTEMS PTY LIMITED JFM CONSTRUCTIONS PTY LIMITED KATHLEEN DRIVE STONEFRUIT GROWERS SYNDICATE NO 1 PTY LIMITED 2 Second Plaintiffs First Defendant Sec~nd Defendant Third Defendant Fourth Defendant Fifth Defendant First Plaintiff by Counter-claim Second Plaintiffs by Counter-claim First Defendant by Counter-claim 10 20 0 n 30 40 Fbirst Defendant (J y Counter-claim 50 60 -- 2 of 7 -- 0 0 0 0 MOGARI PTY LIMITED JOHNSON FARM MANAGEMENT PTY LIMITED AUSTRALIAN BLUEBERRY COMPANY PTY LIMITED CORINDI BLUEBERRY GROWERS PTY LIMITED FARMER JOHNSON DISTRIBUTIONS PTY LIMITED FARMER JOHNSON CITRUS LIMITED JFM INVESTMENTS PTY LIMITED WINHOLM PTY LIMITED JOBHILL PTY LIMITED IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE JOBHILL TRUST 10 GREGORY MORRIS JOHNSON FR.ANCIS EDWARD JOHNSON ANTHONY JAMES JOHNSON Secorid Defendants by Counter--claim and CINSLAKE PTY LTD and FRANK JOHNSON PTY LTD BY COUNTER-CLAIM BRISBANE .. DATE 27/08/93 ORDER 3 'rhird Defendant by counter-claim Fourth Defe~dant~ by Counter-claim 20 30 40 50 60 -- 3 of 7 -- 270893 cml (Ambrose J) HIS HONOUR: I.n this cas,e -.there is an application to strike out the action made by the Equus ·side-· of the record, on the basis that there has not been proper-discovery as, ordered, and that proper particulars as ordered have not been provided. For·the Rural Finance side of the.record it is saiO. that. their particulars have been provided and. that they are sufficient. and that to the e~tent that documents touching or concerning or -re-lating to any of the issues between the partie? are discove-rable, the-y; have been disc:9vered with the .possible exception of o~e .or two that may have been overlooked. It is also contended for the.Rural Finance side that some of the documents. that have ·-b,een perhaps not discovered have only. 10 20 0 recer;ttly becom~ relev?-nt to a,ny ·_of the j_ssues as the result of 0 an_<?-ffiendment to -a defence that was made by leave this morning. 30 It seems. to me that there is a good deal in what has :been said on behalf of the Equus side, that there has been a great deal of delay in this action. It may well be, looking at the mate~ial, :. _;that. th~ere are problems on the part of the Rural Financ~ side ,of :the r~<:ord in financing ·the action upon which ·.:.,·. it has embark_ed. , The .imprEission I have is, without going into 40 all .. the mater:-;L.al, that the~e hq.s ,been .a persistent dilatory reaction on the part Df Rural Finance.to comply with the '.' • 'I • •-' orders .ma~e before _23 July _.1_993, _.and the orders made on. that occasipn.\. TC? some_ex~ent :t:_his pr;oblem hC?P~fully has been · · over.come by the. undertaking ""given .on~beflalf .of.,.the solicitor ' . ' -· . ~ . - . for the Rural .Finance s.ide .?f. the record, .to ma~e further and proper di_s,coverx of documents relevant !-o _the . issues as they now stand, which seem to me to be not much different from the issues as that have always stood, but there may be some 4 50 60 0 0 -- 4 of 7 -- 0 '" .J 270893 cml (Ambrose J) expansion on that, in any event, to make full and proper discovery to the extent that it hasn't been so far made, by 4.30 p.m. on Monday 30 August 1993. It seems to me that there are significant deficiencies hi the fur-ther and better particulars tha·t have been filed or are ready for filing if they haven't actually been filed yet. I have been handed a copy of 'them. I· am informed that counsel have not yet settled the particulars. It seems to me·that·the order that I made on the 23 July 1993.will constrain the plaintiff's case, the Rural Finance case to the proper particulars provided. I am not persuaded the particulars are 0 proper - I do not propose to go into them at this stage; i_t wouJ.d take all of the afte:nioon - however, I am· also informed by the solicitor for Rural finance that proper particulars can be settled and delivered by 4.30 p.m. on 30 August 1993. 0 It seems to me that I•Te have ·reached a stage now that by that time, 30 August 1993, only 14 days will remain to allow the parties to prepare for'trial, and having regard to the long () and expensive interlocutory history of this matter arid the multiple applications for i.nterlocu.tory relief that have been made, it seems to me that justice, and. the proper administration of the Court determinati.on of .this matter requires that there be a final discovery, a final proper discovery, effected riot later than 4.30 p.m. on 30 August., and that on that occasion also there be~ by that time, proper particulars as required by law and as required by.the orders made, be delivered. 10 20 30 40 50 60 -- 5 of 7 -- 270893 cml (Ambrose J) The case ... ha$ drag.g,ed. o,n ,for- a long time., The Equus side is owed many million of dollars ~s a sec~red creditor, as a mortgagee. J;:tr" h~s be~:n he_ld o~t of tne exercise of its rights as mortgagee by. a .. se:r:i,es o~ interlocutory injunctions obtained by the Rural .Financ;e people. It seems that although those ~. • .; .. ' <, • .. • inj un.c:tions. haye. ope_rated for a s~gni~icant time, I t.Q.ink significantly more than 12,months, must be going, on ,for. 18 . .. ' . . .,.. . ·. . ' ., . months or more r ,tJ:lere has._ been. n,o, in my_ view, concerted,_ de,i:;:ermined .. e.f:eo:r;-t;. _by.- the.·plain;ti_ff .to procee~ with th.is trial. It; .was my; ap:Qre:cia.tion o~ that fact back in;July that led me tp, fi.x, ?l :Precise date when _tJ:J.e action would go on fo:r hearing anq :t<?,·_~m~Js.e. q_ires;:i;:ipns necessary _to have. th_e ~riaJ.. read"¥" to proceeq.:,'t:h.en, .. To a. s.~.gnif.icaJJ.t -J~Xtent it, seems .on the material that these directions may not have been complied .,.,,;yv;it,h.. They have,_ no_t peen complied with, in my view, wi·th .' 10 20 30 respe<;:,tJ-:to particul9-rs_-, and it se~ms th_at- there is. a pros_pect, from:-.Y.Jhat I._ have been told today, that they may_ not well have beel)-_·C(_)mplied w,ith respect .to discovery._ What- I, propose tq do .is indicate _clearly that if all .. - ' . . -·· ··; •'' - .. -. .· ' •,;· discoverable ~documents; ha~e not been discovereq. properly and completely_ :qy_ a_ff;idavi:t of documents fi:) .. ed on or before 4. 3 0 . p.m. on Monday next, 30 Augu?t, J: propose ._to .discharg:e the . various interlocutory injunctions that have been made so that the Equus side can pursue its remedies and take advantage of 40 ~ ~ the protection which its security gives it. I indicate also, that if proper particulars, according to law, have not been delivered by 30 August 1993 by 4.30 p.m. I will entertain an application to strike out the action. I indicate also that if there has been no purported further and better discovery 60 6 0 0 0 0 -- 6 of 7 -- 0 ,\ ~ 270893 cml (Ambrose J) effected by 4.30 p.m. on 30 August 1993 I will now direct that the action be struck out. If there has been a purported further and better discovery made, and it is demonstrated by the Equus side of the record-that it is not a proper discovery in t.hat they ar:e able to· produce documents that do to1ich and concern issues between the parties in the action, and those 10 documents have not been discovered by t.he Rural F.inance side of the record in any purported discovery that has been effected by 4.30 p.m. on 30 August1993, I will then enterta.in an application to be made forthwith, possibility the follov.ring 20 day, within a day or so, to have the plaintiff's action struck out. It will really be up to Rural Finance Pty Ltd to comply 0 with the directions that I have given under that threat; I will resel;'ve the costs ?f the application to myself rather than make one of a series of orders for costs·._ .. If.:.the·as:tion is. struck out I 30 will make an order, unless there is some good reason to the contrary, that Rural Finance pay the cost.s incur1~ed so far.· 0 I will adjourn the further hearing of these applicatioris to a 0 date to be fixed, indicating that if any application is to be 40 made to strike out and so on, it probably won '·t be made until. Wednesday morning, I should think. so 7 -- 7 of 7 --