Earl Covington & Associates Pty Ltd v Bondley Pty Ltd [2004] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: Earl Covington & Associates Pty Ltd v Bondley Pty Ltd [2004] QDC 014 PARTIES: EARL COVINGTON & ASSOCIATES PTY LTD ACN 009 871 336 (Plaintiff) AND BONDLEY PTY LTD ACN 063 347 727 (Defendant) FILE NO/S: 49 of 1999 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 6 February 2004 DELIVERED AT: Maroochydore HEARING DATE: 30 January 2004 JUDGE: Judge J.M. Robertson ORDER: [1] The defendant’s application for appointment of a special referee is refused. [2] The plaintiff’s oral application for the appointment of a case appraiser is refused; [3] I direct the parties to provide to the Court, within 21 days, written submissions as to the directions required to ready this matter for trial and have it set down. [4] Liberty to apply; [5] No order as to costs; [6] By consent, the plaintiff file an amended Statement of Claim to incorporate particulars provided to the defendant’s solicitors by the plaintiff‘s solicitors in a letter dated 20 January 2004. CATCHWORDS: PRACTICE AND PROCEDURE – consideration of circumstances in which special referee should be appointed pursuant to Rule 501UCPR. Application for appointment of -- 1 of 4 -- 2 case appraiser pursuant to Rule 334 UCPR. Cases cited: Everingham v Clarke (1994) 1 Qd. R. 34 Netanya Noosa Pty Ltd v Evans Harch Constructions Pty Ltd (1995) 1 Qd R 650 Legislation: Rules 334, 343, 501 of the Uniform Civil Procedure Rules ss 255 and 256 of the Supreme Court Act 1995 s89 of the District Court Act COUNSEL: M. Conrick (for the Plaintiff) G. Barr (for the Defendant) SOLICITORS: Praeger Batt Solicitor for the plaintiff Butler McDermott & Egan Solicitors for the defendant. [7] This is another in a long line of interlocutory applications in these proceedings which are not yet ready for trial despite the litigation being on foot now for some years. [8] Effectively, there is before the Court an application by the Defendant for further and better particulars, disclosure, and the appointment of a special referee pursuant to Rule 501 of the Uniform Civil Procedure Rules; and an oral application by the plaintiff for the matter to be referred to case appraisal pursuant to Rule 334 of the UCPR. [9] As the matter proceeded, the issues of particulars and disclosure were resolved leaving only the special referee and ADR issue. The parties have agreed to an order that the plaintiff file an amended Statement of Claim to incorporate particulars provided to the defendant’s solicitors by the plaintiff‘s solicitors in a letter dated 20 January 2004. [10] Before turning to the live issues, a brief description of the dispute is necessary. The plaintiff’s claim relates to a contract between the parties (the terms of which are disputed) whereby the plaintiff was appointed by the defendant to manage a subdivisional development of some land at Caloundra. The defendant has responded with a defence and counterclaim in which it raises allegations of negligence, negligent misstatement, and breach of contract. A central factual dispute on the defendant’s pleading relates to a flood study (or studies) of the subject land which the defendant alleges (inter alia) were misleading resulting in the defendant as developer being required by the relevant Council to incur considerable extra expense in raising the level of the land. [11] The parties have endeavoured to settle the dispute by negotiation but have been singularly unsuccessful. The history of the litigation to date strongly suggests that the matter will only be resolved by an independent umpire such as a Court, or, as -- 2 of 4 -- 3 the plaintiff contends, a case appraiser. With this very brief summary in mind, I will turn to the issues now before the Court. [12] Special Referee The defendant’s application is made pursuant to Rule 501 UCPR although no question has been framed for the Court to consider. The learned editors of UCPR note that the Supreme Court has power to appoint a special referee pursuant to ss 255 and 256 of the Supreme Court Act 1995. They go on to note: “Although r501 is on its face untrammelled it must be read with s256…. Since it confers the power, any limits which it imposes must limit the rules which it empowers. Consequently, there is a limit on the reference of questions to referees to those which have both of the following characteristics: (a) the question requires……a scientific…investigation. (b) the question cannot in the opinion of…a judge conveniently be made before a jury or conducted by the Court through its other ordinary officers.” [13] Subject only to the obvious point that a reference pursuant to r501 cannot be made in a trial by jury; I respectfully agree with the statement of the learned editors. The above extract from the annotations to Chapter 13 part 7 of UCPR, find support in the judgment of Ryan J in Everingham v Clarke (1994) 1 Qd. R. 34 at 37 in which his Honour relied on authority to that effect in Charles Osenton & Co v Johnston (1942) AC 130. At 38-39 his Honour said: “I accept as accurate the statement of Beach J in A.T. & N.A. Taylor & Sons Pty Ltd v Brival Pty Ltd (1982) VR 762 at 765 that where a party to litigation wishes the sort of dispute which normally calls for judicial determination to be tried by a judicial tribunal, it will only be in cases of an exceptional nature that his wishes will be disregarded and the matter referred to an arbitration or special referee.” [14] His Honour’s judgment was applied by Lee J in Netanya Noosa Pty Ltd v Evans Harch Constructions Pty Ltd (1995) 1 Qd R 650 at 655. [15] The plaintiff opposes the appointment of a special referee for the reasons articulated in its solicitor’s letter dated 16 October 2003 to the solicitors for the defendant: “Our client considers that such process is attended by significant additional cost and adds no certainty to the litigation process in terms of outcome or length of trial. First, there is the necessity to frame the question of fact which is to be referred to the referee. Given our clients continued dissatisfaction with the particulars of the allegations of negligence made against our client that process is of itself likely to be productive of disputation. Secondly, upon the receipt of the report the court may under rule 504 order a further report, seek an explanation or remit the matter. Thirdly, irrespective of whether the question is referred to the special referee “to decide” or “to give an opinion” under rule 501 it remains open to the court to accept or reject all or part of the opinion or decision,. It seems likely a party is -- 3 of 4 -- 4 entitled to be both heard and to adduce evidence as to what step the court should takes under Rule 505.” [16] It is true that in the proceedings before Judge Dodds on 29 September 2003, Mr Ellem on behalf of the plaintiffs did not object to the appointment of a special referee as such, rather he was raising objections to the person nominated by the defendant to act as special referee. It is clear that Mr Ellem was under some pressure on that occasion as, due to a mix-up, his firm had not appeared and he later came in by telephone and was dealing with these matters when he had not had time to properly consider them. When he did have time, he responded properly and his letter dated 16 October 2003, clearly articulates the reasons why his client opposes a special referee. [17] In my opinion, this is not an exceptional case and the defendant’s application is refused. [18] Case Appraisal Case appraisal is part of the Court’s ADR procedures mandated in this Court by s89 of the District Court Act which are in part designed to reduce cost and delay and allow litigants to achieve negotiated settlements quickly with a minimum of formality and technicality. As such, case appraisal is in a different category to appointments of assessors or special referees; and the lack of consensus is simply one factor for the court to consider in deciding whether or not to refer the dispute pursuant to r334. [19] The defendant opposes the referral but its position is that it would consent if the plaintiff agreed to be bound by the appraiser’s decision. This comes about because r343 permits a dissatisfied party to elect to have the matter go to trial if the election is filed within 28 days after the case appraiser’s certificate is filed in the registry. [20] Mr Barr makes the telling point that his client may have to bear the expense of the case appraisal process, and then still have to go through trial, while all the time it is holding back $120,000.00 from the proceeds of the sale of the development to cover the plaintiff’s claim. The plaintiff will not agree in advance to be bound by the appraiser’s decision which it is quite entitled to do. [21] I am not persuaded that a referral in this case would achieve the purposes of ADR. I have already referred to the duration of the litigation, and the many court skirmishes have been characterised by claim and counterclaim about various issues. A cynic might even suggest that given the history of this litigation, it might prove impossible to find common ground on what dispute is to be referred. As I have noted, the parties have endeavoured unsuccessfully to negotiate a settlement. [22] In my view, this matter should go to trial in the ordinary way, and as soon as possible. I refuse the application for the appointment of a case appraiser; and I direct the parties to provide to the Court written submissions as to the directions required to ready this matter for trial and have it set down. Both parties shall have liberty to apply. [23] As neither party has succeeded on its primary application, there will be no order for costs of these applications. -- 4 of 4 --