Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd as Trustee for the Kimlin Family Trust

[2010] QSC 381

SUPREME COURT OF QUEENSLAND

CITATION:	Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd as Trustee for the Kimlin Family Trust [2010] QSC 381
PARTIES:	BLI BLI #1 PTY LTD ACN 113 906 291
(First plaintiff/applicant) and
BLI BLI #2 PTY LTD ACN 114 650 494 (Second plaintiff/applicant)
v
KIMLIN INVESTMENTS PTY LTD ACN 105 972 825 AS TRUSTEE FOR THE KIMLIN FAMILY TRUST (First defendant)
and
PUGS PTY LTD ACN 081 709 855 AS TRUSTEE FOR THE BRETT COOK FAMILY TRUST (Second defendant)
and
ROSS COOK AND BRETT COOK PTY LTD ACN 119 223 317 AS TRUSTEE FOR THE ROSS COOK AND BRETT COOK UNIT TRUST
(Third defendant) and
ROSS KINGSTON COOK (Fourth defendant)
and
BRETT KINGSTON COOK (Fifth defendant)
FILE NO:	BS 5077 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Application on the papers
JUDGE:	McMurdo J
ORDER:	1. The application is dismissed.
2. There be no order for costs in respect of this application.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – INTERROGATORIES – WHO MAY BE INTERROGATED – where the person to be interrogated is not a party to the proceeding and has not been served with this application – whether the court should exercise its auxiliary equitable jurisdiction to grant leave to serve interrogatories on the non-party.
Norwich Pharmacal Co & Ors v Customs and Excise Commissioners [1974] AC 133 Re Pyne [1997] 1 Qd R 326
SOLICITORS:	Tucker & Cowen for the applicants

1. The applicants have applied for an order that they be granted leave to serve interrogatories. It is not an application made under r 229 of the UCPR because the person to be interrogated is not the defendant or otherwise a party to the proceeding. He is Mr B C Rubin who features in an oral agreement alleged by the applicants in paragraph 10 of the statement of claim. That is not an agreement to which the applicants were parties. In effect, the applicants wish to interrogate him to find out more about the oral agreement which they have alleged.

2. Recognising that r 229 does not apply, the applicants refer to Re Pyne[1] from which they argue that there is a power to order the provision of information by a non-party. However, the jurisdiction invoked in that case was identified as the Court’s auxiliary equitable jurisdiction as explained by Lord Reid in Norwich Pharmacal Co v Customs and Excise Commissioners.[2] It arises in circumstances where a person, wittingly or otherwise, has become mixed up in the tortious acts of others so as to facilitate their wrongdoing. It is said that such a person has a duty to assist the person who has been wronged by providing him with full information disclosing the identity of the wrongdoers. That is not the present case. The jurisdiction relied upon does not exist here.

   [1] [1997] 1 Qd R 326.

   [2] [1974] AC 133 at 175.

3. In any case, this application was made on the papers without its being served upon Mr Rubin, as it ought to have been. The person against whom orders were sought in Re Pyne was served and was heard upon the application.

4. The application is dismissed and it will be ordered that there be no order for costs in respect of this application.