BTU Group v Noble Promotions P/L

[2002] QCA 505

SUPREME COURT OF QUEENSLAND

CITATION:

BTU Group & Ors v Noble Promotions P/L & Ors [2002] QCA 505

PARTIES:

BTU GROUP
(first plaintiff/first appellant)

MARJORIE WONG
(second plaintiff/second appellant)

MICHAEL BERNARD SHORE
(third plaintiff/third appellant)

v

NOBLE PROMOTIONS PTY LTD
ACN 058 360 384
(first defendant)

PETER RAYMOND SMITH
(second defendant)

COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
(third defendant/respondent)

FILE NO/S:

Appeal No 2687 of 2002
SC No 7659 of 1998

DIVISION:

Court of Appeal

PROCEEDINGS:

Miscellaneous – Civil Application
Appeal from an interlocutory decision

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2002

JUDGES:

McMurdo P, Williams JA and Dutney J
Judgment of the Court

ORDER:

1.   Dismiss the respondent’s Notice of Contention;

2.   Allow the appeal to the extent of setting aside the order for costs contained in the order of the Chamber Judge of 21 February 2002;

3.   The costs of the applications and of the appeal be each party’s costs in the cause.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – THE APPLICATION AND THE ORDER – THE ORDER – whether an application for disclosure pursuant to rule 223 of the Uniform Civil Procedure Rules 1999 requires a Rule 444 letter

Meredith v Palmcam Pty Ltd [2001] Qd R 645, distinguished

COUNSEL:

L A Stephens for the appellants
K A Barlow for the respondent

SOLICITORS:

John C Potts & Co for the appellants
Clarke & Kann for the respondent

1. THE COURT: This is an appeal from an order of a Chamber Judge dismissing the appellants’ application prima facie brought pursuant to Rule 223 of the UCPR and ordering the appellant to pay the respondent’s costs of that application. There was no hearing of the application on the merits. The Chamber Judge expressed the view that Rule 444 applied to the application, and as there had been no compliance with that Rule the application should be dismissed.

1. The application sought further disclosure and expressly referred to Rule 223. It was the submission of counsel for the respondent both before the Chamber Judge and in this court that Rule 444 applied because in effect the application was one bought pursuant to Rule 371 grounded upon an initial failure by the respondent to comply with the rules as to disclosure. In support of that submission he referred to the decision of this court in Meredith v Palmcam Pty Ltd [2001] 1 Qd R 645.

1. That decision, however, can be clearly distinguished.  There the pleading failed to comply with Rule 155 and the application was clearly based on that failure.  In consequence the application there was brought pursuant to Rule 371 and Rule 444 applied.

1. Here the application is bought pursuant to a specific rule (Rule 223) and it is not necessary to have recourse to Rule 371.  It follows that strictly construed Rule 444, which is of limited application, does not apply to it. 

1. However, experience (both of the Judges and legal practitioners) has shown that the Rule 444 procedure is useful on a much wider basis than is expressly contemplated by its provisions.  In consequence the procedure has been extensively used in situations outside the strict scope of operation of the rule.  That practice should be encouraged because in many instances it obviates the necessity of an application to the court.  However, where the application is not one which is expressly caught by Rule 444, it would be a wrong exercise of discretion to dismiss the application because that procedure was not followed.

1. In this case, before bringing the application, the solicitors for the appellants wrote to the solicitors for the respondent the letter of 18 October 2000.  It detailed with some particularity the further disclosure sought.  Clearly that letter was sufficient to put the respondent’s solicitors on notice as to the documents sought by the appellants, (but as noted by the learned Chamber Judge) it did not strictly comply with the requirements of a Rule 444 letter.  The decision of the Chamber Judge was made on 21 February 2002, and in addition to lodging this appeal the solicitors for the appellant caused a Rule 444 letter to be served on the solicitors for the respondent on 25 February 2002.  That elicited a supplementary list of documents from the respondent which were inspected on 22 March 2002.  The documents so disclosed were substantial.  Why those documents were not disclosed after the letter of 18 October was received was not satisfactorily explained.

1. It thus appears that the respondent took a technical point before the Chamber Judge on 21 February 2002 when it knew, or ought to have known, that it was in possession of a substantial body of documents which arguably ought to have been disclosed.

1. Notwithstanding that, the respondent has had its costs assessed and consequent upon demand made the appellants have paid those costs.

1. The respondent also sought leave to rely on a Notice of Contention in this court alleging that, if the learned Chamber Judge was wrong in finding that Rule 444 applied nevertheless, he should have dismissed the application on the merits.  Again, given the fact that documents were subsequently disclosed it is not necessary or opportune for this court to consider that question further.

1. The appellants submitted that they may still wish to seek disclosure of further specified documents but that would have to be the subject of a fresh application.  Counsel for the respondent conceded that there would be no basis on which the respondent could contend that the appellants were estopped from making such an application even if the order dismissing the earlier application stood.

1. The only remaining question relates to costs.  Without considering the merits in detail there are grounds for concluding that the appellants’ material before the Chamber Judge was deficient and that no hearing on the merits could have proceeded without an adjournment probably at the appellants’ cost.  In all the circumstances the appropriate order for this court now to make is that the costs of the application before the Chamber Judge and of the application and appeal be each party’s costs in the cause.

1. The orders of the court should therefore be:

(1)          Dismiss the respondent’s Notice of Contention;

(2)          Allow the appeal to the extent of setting aside the order for costs contained in the order of the Chamber Judge of 21 February 2002;

(3)          Order that the costs of the applications and of the appeal be each party’s costs in the cause.