ANZ McCaughan Securities Ltd & ANZCAP Securities Ltd v Australian Commercial Research & Development Ltd & Ors [1990] QSC 344

10 30 40 50 60 R.EVISED COPIES ISSUED Cetirt 'Reporting Bureau IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION D~te, !?' I fo ! 9..0 No. 208 of 1990 BEFORE SENIOR MASTER HORTON Q.C~ BRISBANE, 14 SEPTEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: -Govt. Printer, Qld. ANZ MCCAUGHAN SECURITIES. LIMITED and .. ANZCAP SECURITIES LIMITED Plaintiffs -and- AUSTRALIAN COMMERCIAL RESEARCH AND DEVELOPMENT LIMITED -and- CLIVE FREDERICK PALMER SUSAN MARIA PARKER and PATRICK MICHAEL MORTON -and- RICHARD HAMMOND -and- ANTONE PTY. LIMITED -and- CLOSERIDGE PTY.LTD. -and- LEGAL SPECIALISED ACCOUNTS PTY.LTD., MICHAEL TOPALOV, RICHARD CARTMER, HAROLD FONG and THEO MENSINK 1 First Defendant Second Defendants Third Defendant Fourth Defendant Fifth Defendant Sixth Defendants 10 20 30 40 50 60 -- 1 of 5 -- 10 20 30 40 50 60 ORDER MASTER: This is an application with respect to an affidavit filed by a number of defendants in June of this year, wherein those defendants seek: A, to have determined the question as to whether the plaintiffs have standing to bring the action against the defendants, and secondly for the striking out of the statement of claim pursuant to Order 22 ~ule 31, it being frivolous, vexacious and/or an abuse of process. I have benefited by substantial argument from both leading counsel as to the nature of this application. I do not propose to deal at length with the authorities, sufficient as it is for me to say that in my view both applications come clearly within the ambit of the doctrine applied by the High Court in Carr v.F.C.A., 147 C.L.R. 246. There at page 255 Mason J., as he then was, adopted the test applied in Hall v.The Nominal Defendant (1966) , 117 C.L.R. 423, "When determining whether an application was an interlocutory one or one for final relief was to be determined by the answer to the question whether the order finally disposed of the rights of the parties. -Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 5 -- 10 30 40 50 Taylor J. in Hall v. The Nominal Defendant and quoted by Mason J. in Carr v. F.C.A. at p. 255 had this to say: "On this basis an order staying proceedings against one of several defendants on the ground that they are scandalou~ vexatious and an abuse of the process of the Court has been treated as interlocutory. The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action." That, of course, is sufficient to deal with the second ground of the relief sought in the June summons but in my view it is sufficiently strongly arguable to persuade me here today that Mr. Jackson's suggestion that the question of standing is such that it might, regardless of the fate of the June application, change sufficiently and, of course, always subject to the relevant limitation period, change to enable the prosecution of a subsequent action notwithstanding dismissal of this. Accordingly, therefore, it seems to me that hearsay material is permissible in this affidavit although I cannot fail to remark that it is a regrettable course to adopt to have the solicitor, Mr. Bell, swear to matters that seem almost to be exclusively within the alleged knowledge of Mr. Palmer. That is not to say, however, that merely by ruling admissible hearsay material, that can elevate to a level of admissibility that which, were Mr. Palmer himself to depose to, would be inadmissible and it seems to me that much of the affidavit of Mr. Bell falls within this latter category. Mr. Jackson of Queen's Counsel has submitted to me a list of paragraphs which he says go to foreshadow submissions. I gather this is a somewhat elegant way of 10 20 30 40 50 60 60 -Govt. Printer, Old. 3 -- 3 of 5 -- 10 20 30 40 conceding that they are argumentative; these being 13, 17 (second sentence), 34, 38, 39, 40, 57, 60, 61, 62, 63, which I intend to strike .out. Further, in another list, Mr. Jackson has submitted .. to me a list of paragraphs which he concedes offends against the rule prohibiting the use of documents obtained by .means of discovery in another action. These paragraphs are 9, 15, 20 (last sentence), 21, 22, 23, 25, 26C, 27, 28, 29, and 31. It is my intention also to strike out these paragraphs. I turn now to the issue which is really crucial to be '1 resolved with respect to Mr. Horton of Queen's counsel; objection to the balance of the material, much of which he alleges offends against the discovery principle. Much of the material involves what is or is not in the plaintiff's affidavit of documents filed (and presumably served) in action No. 924 of 1989. The question for me to determine is whether or not by referring to that affidavit of documents the respondents to this application are in breach of the discovery principle. Mr. Jackson of Queen's counsel points out to me that the affidavit of documents in action 924 presumably is a public document and susceptible of inspection in the Registry of this court and as such merely to assert that such a document has been discovered in this action does not offend against the rule. What the rule, Mr. Jackson asserts, does prohibit 10 20 30 40 50 50 is the disclosure and use of the contents of the document rather than the mere disclosure that such a document has been discovered (without in any way revealing its contents). Mr. Horton, on the other hand, argues that merely to refer to a document as having been discovered and described in an 60 60 -Govt. Printer, Old. 4 -- 4 of 5 -- 10 30 40 50 60 affidavit of documents in a separate. action of fends the rule. The filing of an affidavit of discovery in my view is an act which leads to susceptibility of scrutiny by a member of the public of the document. It is the inspection of the documents . which - ultimately leads to the: revelation -·of their contents. However, the mere description of the document for the purposes of complying with the rules of the Court relating to the proper form of the affidavit of documents (rules which almost invariably seem to be breached with the current fashion for describing documents merely in terms of bundles) is susceptible of a breach of the discovery rule and that a proper description of a document for the purposes of inclusion in an affidavit of documents may in itself involve the part-revelation of its contents. It is, of course, always open to the respondents to this application in cross-examination or even in-chief to refer to the affidavit of documents in 9 24. However, i.t does not seem,to me to be a proper use of the affidavit of documents to use it and its contents for the purposes of describing documents in an affidavit in action 208 of 1990 and, accordingly, I order that 4B, 8, 9, 14B, 15, all of 20 on that ground. - ... Pr-ir,ter, Old. 5 10 20 30 40 50 60 -- 5 of 5 --