Bitucon (Mobile) Pty Ltd v Caltex Oil (Australia) Pty Ltd & Anor; Gregory & Gregory v. Caltex Oil (Australia) Pty Ltd & Anor [1990] QSC 15

10 20 30 40 50 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ~~ /~ y/'?(J. BEFORE MR. JUSTICE COOPER BRISBANE, 5 FEBRUARY 1990 REVISED COPl.f:S ISSUED ,SC 90/ Court Reporting Bureau Date/,/ <- I cj O BETWEEN: BETWEEN: (Copyright in this transcript is vested inthe Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) No. 4097 of 1981 BITUCON (MOBILE) PTY. LTD. -and- CALTEX OIL (AUSTRALIA) PTY. LIMITED Plaintiff First Defendant -and- GILBARCO AUST. LTD. Second Defendant No. 2203 of 1978 ROBERT STANLEY GREGORY and ROBERT STANLEY GREGORY as next friend for PAUL FRANCIS GREGORY and MICHAEL ROBERT GREGORY (late an infant but now of full age) Plaintiff -and- CALTEX OIL (AUSTRALIA) PTY. LIMITED -and- GILBARCO AUST. LTD. ORDER First Defendant Second Defendant HIS HONOUR: In this matter I propose to adjourn the trial of the actions commenced by Bitucon (Mobile) Pty. Ltd. in Action No. 4097 of 1981 and the action of Robert Stanley Gregory in Action 2203 of 1978 to a date to be fixed. I ( 'S 10 20 30 40 50 60 60 -Govt. Printer, Qld. -1- -- 1 of 4 -- 10 20 intend ordering that the matters be listed before Master Horton Q.C. for review on Monday, 26 February 1990. Briefly my reasons for granting the adjournment are that until recently Mr. Gregory could have expected the issue of liability to have been carried by the legal representatives for his infant son. The late settlement of that action has meant that he is obliged to carry that issue of liability together with the issues of quantum for personal injuries and economic loss. Mr. Crowley has questioned the bona fides of Mr. Gregory; however, I note that when ordered last week to provide security for costs, such security has been provided. I have been ha.nded up copies of proposed amendments to be sought by the defendants. The amendments raise a 10 20 counterclaim against Mr. Gregory in Action 4079 of 1981 forte 30 30 40 firs~ time. It requires Mr. Gregory be joined as a defendant to a cross claim in that action. Mr. Gregory will have to plead to the claim against him. Mr. Gregory says that, having been refused legal aid on Thursday last, and having regard to the defendants maintaining the issue of liability in so far as his claim is concerned, together with the positive case of negligence ,now sought to be raised against him, he is in no position to proceed today. Mr. Gregory has asked to adjourn the matter for 14 days to prepare his case and obtain any further necessary expert evidence. This 40 50 50 Court is not in a position to grant a trial date in 14 days. The appropriate course is to adjourn the matter for review in three weeks so that the Master can be satisfied that in that time the plaintiff has prepared his case to a sufficient degree and that the pleadings on the cross claim 60 60 -Govt. Printer, Qld, -2- -- 2 of 4 -- 10 20 are in order to determine whether the actions ought to be set down for trial. The proposal to amend and add a party at this late stage on the part of the defendants means that I will reserve costs of the adjournment to the trial judge who will be in a better position to determine how costs should be awarded, having regard to the extent of the issues open by the amendment. I will give the defendants leave to amend and add Mr. Gregory as a party in accordance with the particulars handed to me which I have initialled and put with the papers. The orders will be: order that the trial of Action 4079 of 1981 and the action of Robert Stanley Gregory in Action 2203 of 1978 be adjourned to a date to be fixed; order that the within actions be listed for review before Master Horton Q.C. on Monday, 26 February 1990; order that 10 20 30 30 the defendants have leave to amend the defence in Action 2203 of 1978 and add Robert Stanley Gregory as defendant to a cross claim by the defendants in Action 4079 of 1981 in accordance with the drafts initialled by me and placed with the papers; order that the costs of and incidental to the 40 40 so 60 adjournment be reserved. HIS HONOUR: As I understand the matter the question of costs of the adjournment of Monday last was reserved - the defendants' costs were reserved to the trial judge. In so far as costs which were thrown away on that date at the instance of the plaintiff, Robert Stanley Gregory, are concerned, that is a matter which in my view is to be determined by the trial judge. In so far as the costs were sought to be recovered against the infant Paul Francis Gregory -Govt. Printer. Qld. -3- 50 60 -- 3 of 4 -- 10 20 30 40 50 60 I have not seen the terms of the settlement - it seems to me that the only way those costs could be recovered is by an order against that party. In all the circumstances I refuse to make an order against that party, having regard to the settlement, and I will not make any order for costs today. I refuse leave to appeal on the question of costs. HIS HONOUR: I order that the plaintiff, Bitucon (Mobile) Pty. Ltd. provide further and better answers to interrogatory number 3, paras.3, 4 and 5 and I order that such further and better answers be delivered by Friday, 23 February 1990. HIS HONOUR: I order that you, Mr. Gregory, file an address for service within 48 hours of today's date. -Govt. Printer Qld. -4- 10 20 30 40 50 60 -- 4 of 4 --