Commonwealth of Aust, Re; Re Aust Commercial Research & Dev [1993] QSC 398

, . . Sc... '93/31~ - __ ::.g.\. q,q ~ .. }.;~?~~~ . ;, ;"fl~ 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 DOWSETT J os No 803 of 1993 IN THE MATTER OF THE RULES OF THE SUPREME COURT OF QUEENSLAND IN THE MATTER OF AN AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN COMMERCIAL RESEARCH AND DEVELOPMENT LIMITED BRISBANE .. DATE 27/0B/93 ORDER 1 -- 1 of 5 -- 270t93 HIS HQNOUR: The preyio~s histo~_of_this matter appears sufficiently from rec;tsons gi~en_by_.me Ol). 4 _August last. The plaintiff has now delivered _a stat~ment of claim, supported to a substantial _degr~e. py affidavit material. Broadly speaking, it seeks aQpropriate con$truction of the agreement, alternatively for construction of the agreement in the light of the background circumstances, alternatively r~c.tifi,cation (although that relief. is not' • ~ s specifically prayed for) an~ an es.toppel operati ~e. against . the defendant -~.. . . - . -· .. . - to ;preven-t: . the .. defendant from d~parting . from the meaning of the.. agreement asserted by the plaintiff o The defendant continues to urge . the considerable advantages accrue to. the defendant from an early determination of the construction point, together with the "Codelfa" point, that is, the construction of the agreement against the relevant background circumstances, and asks that tha~ exer~ise be undertaken by the Court independent of the trial. of the actiqn as a whole. The f~al perceived_ ~d~ant~ge lies in the fact that such an exercise ~ould _not req~ire the pa~ties to litigate the alleged breaches of the .- agreement as construed by the defendant. .~t, is._ ~r~.e:~ .... !is has been P?inted out to .me on a number of occasions. in the course of .the argument of this matter~- ... ~hat the.re is a, mec::hani~.m for the construction of docurnent.s in . a summa;ry ~ay o • < • • .. _, . It is also, I thi~, ~rue that in performing such an '. 2. ORDER 10 20 30 50 60 -- 2 of 5 -- • 270693 :· $ exercise, . .. . ~ However, that would be an- 'unusua'l course' to o' • • .., a • .-, - 0 : ~ 0 4 ;,. 0 0 - follow· in Chambers · in ·-the absence of' · agreement as to "the existence of such' circumstances·. - '· Mr Fryberg, for the defendant~ asserts tliat for the puri;ios'es of such· an exercise,· the d~f~~dant wouid be ~ontent' to rely. • f • • • - upon those various facts· ass'erted· by the plaintiff in 'the ·. . 'affidavit material to the extent that such evidence was shown to be admissible. That seems to me to contemplate a quite· substant-ial exercise, involving le~gthy ~rgument -~bout admissibility and theri ·appropriate argument as construction of · the background circumstances document comprising the contract: . It is true that if that questi-on were· resolved agai"nst ·-the .. defendant, meaning that the plaintiff's ·assertion as to the meaning of the contract was upheld, then it may well be that it wo~ld not be necessary -'to gb~ into the othe-r· ·p~ints rc:dsed by' the plaintiff. Ho~ever th~ conve'rse· is. not the case:··-~ If the point were decided ih 'favour oi the defe~dant~-· it'.·would · ..... : . . then ·be· still·- necessary ·-to questions · of rectification· ··anci estoppel. ·, . . . I· have some sympathy ·for the defendant because, . until. today, •. the dondO.ct'~of: :the~ action: by the plaintiff has not been such as ·1:·6.- i~press with its'' bona fides. However, since the matter was last before me, it ORDER 10 2i) 30 :1Cl 50 60 -- 3 of 5 -- 270593 claim in an acceptable form and to verify it to the extent; . .. : .~ ..... . .. ..... -......- - . . presently possible. Becau~e ~ ?.~ .th~t,_ I do .no.t . think it appropriate to allow such feelings of sympathy to dictate the outcome of the present application. 10 Whilst there may be some advantage to the defendant in such a course, there is at least. potentially, a substantial waste of judicial time. To ask a Judge to master the detailed and involved facts of this case, including the background circumstances for the purpose of determining the construction summons, with the real possibility that another Judge may have to carry out the same exercise in respect of the rectification claim and the estoppel claim, is no small request. Similarly, the more traditional concerns arise as to the possibility of different views of the facts being 30 taken by different Judges. All in all, I consider that this case does not have those hallmarks which would render it appropriate for determination in a summary way. Serious issues have been raised for consideration by the plaintiff, and I consider they should proceed to trial in the usual way. I no longer consider that there is any aspect of the case which can conveniently be determined in a summary way. so The construction summons will be dismissed. I order that all outstanding costs of 0/S 831 of 1993 are to be the defendant's costs in the cause in 0/S 858 of 1993 60 4. ORDER...... \ -- 4 of 5 -- • 270E393 other than the costs of -·today. Costs of today are to be costs in the ·cause for ·both part-ies·. 10 ... -- 2c~ 3iJ . ,_ ... se .. '·· • .. 60 ORDER -- 5 of 5 --