ANZ McCaughan Securities Ltd & ANZCAP Securities Ltd v Australian Commercial Research & Development Ltd & Ors [1990] QSC 392

IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 208 of 1990 AND: AND: ANZ MCCAUGHAN SECURITIES LIMITED ANZCAP SECURITIES LIMITED AUSTRALIAN COMMERCIAL RESEARCH & DEVELOPMENT LIMITED CLIVE FREDERICK PALMER SUSAN MARIA PARKER PATRICK MICHAEL MORTON Plaintiff First Defendant Second Defendants RICHARD HAMMOND Third Defendant ANTONE PTY. LIMITED Fourth Defendant CLOSERIDGE PTY. LIMITED Fifth Defendant LEGAL & SPECIALISED ACCOUNTS PTY.LTD. MICHAEL TOPALOV RICHARD CARTMER Sixth Defendants EXTEMPORE REASONS MASTER HORTON Q.C. Delivered the twenty-ninth day of October 1990 This is an application in Commercial Causes for leave to approach a Chamber Judge for interlocutory injunctions to -- 1 of 4 -- l restrain a party from proceeding with the issue of a takeover offer. The application for leave was made today, 29th October, 1990, when a casual perusal of the file would reveal that the application for injunctive relief was first made on 17th October, 1990 before Mr. Justice Ambrose on an ex parte application. Notwithstanding this, when it came before me on 18th October, 1990 in Commercial Causes where Mr. Perry represented the ANZ Bank, no mention was made of this application. The matter came on again before Mr. Justice Ambrose on 19th October, 1990 when the defendant was represented and an order made. Again on 22nd October, 1990 the parties appeared before his Honour. On 24th October, 1990 there was an appearance by both parties represented by Sydney silk and his Honour apparently extended an interim injunction. There was a third appearance today before the Senior Puisne Judge. I am told that the effects of Mr. Justice Ambrose's order is to join a further party to the litigation and to grant leave to deliver an amended statement of claim. Further I am informed from the Bar table that further amendments to the statement of claim are foreshadowed. This case does not exist in isolation. There is related litigation in which some of the defendants are the plaintiffs and the present plaintiffs the defendant. The second matter has been a Commercial Cause for some lengthy period of time and has occupied a substantial body of my time by way of hearing interlocutory applications in an attempt to get the other litigation in a state where it might proceed to trial. In March this year I set aside one day to hear an application for listing of this present action (Writ 208/90) as a Commercial Cause. The present plaintiff brought Mr. Horton -- 2 of 4 -- l Q.C. from Sydney. The defendants were represented by Mr. Shand Q.C. from Sydney. Over the vigorous objections from Mr. Shand Q.C. I decided to list this matter as a Commercial Cause in order that I might supervise its preparation and meet the fears of the plaintiff in action Writ 924/89 that the "fast tracking" of this action (Writ 208/90) not be used to slow down or impede the progress of the earlier litigations. Since that date ( 1 6th March, 1990), which I might add occupied the best part of an entire day, there has been a large number of further reviews and interlocutory applications including two days which were set aside to hear an application by the present plaintiffs to strike out affidavit material filed on behalf of some or all of the defendants. On that occasion Mr. Horton Q.C. came from Sydney to appear for the present plaintiffs whilst Mr. Jackson Q.C. appeared for some or all of the defendants. The Commercial Causes list exists for those litigants who are prepared to submit to the discipline of abridged times for interlocutory steps. Unfortunately there is now a substantial list of Commercial Causes ready for trial to which I am unable to offer trial dates. I am disturbed to learn that a Chamber Judge has, no doubt unwittingly, made orders the compliance of which has rendered much of my time and the parties' efforts to supervise the conduct of this particular litigation nugatory. There is an underlying foreshadowed application in this action to have it heard and determined at the same time as Writ 924/89. To join at this stage further parties to this action and grant leave to amend statements of claim means that the party that applied for such relief is acting totally inconsistently with the philosophy of the Commercial Causes list and I am not -- 3 of 4 -- i prepared to continue to supervise the further conduct of this litigation as a Commercial Cause. Accordingly, I order that action Writ 208/90 be removed from the Commercial Causes "A" list and I order that the present applicant pay the costs of and incidental to this application together with the costs of and incidental to the application of 16th March, 1990 which were reserved by me on that date. I should add that I am surprised that at no stage did either party mention to His Honour Mr. Justice Ambrose that in fact this was a Commercial Cause and supervised by myself. Indeed, as I understand it, it was not until Thursday 25th October, 1990, when I drew this fact to His Honour's attention informally, that the necessity for this somewhat belated application was raised, and then by His Honour. Mr. Clarke very properly seeks to accept responsibility for this omission and I make no criticism of him personally or professionally. Rather it seems to me to be an approach which conforms with the overall approach of the plaintiff in this and the other related actions. -- 4 of 4 --