Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd

[1988] FCA 752

IN THE FEDERAL COURT OF AUSTRALIA 1

1

QUEENSLAND	DISTRICT	REGISTRY	1	No. G198 of 1986
1

DIVISION GENERAL 1

BETWEEN:	CABOOLTURE PARK SHOPPING CENTRE PTY. LTD.
(Applicant)
-	AND :	WHITE INDUSTRIES (QLD.)
PTY. LTD.
(Respondent)
AND BETWEEN:	WHITE INDUSTRIES (QLD.) PTY. LTD.
(First Cross-Claimant)
-	AND :	CABOOLTURE PARK SHOPPING
CENTRE PTY. LTD.
(First cross-Respondent)

Judge Making Order:	Ryan J.
Date of Order:	2 December 1988
Where Made:	Brisbane

MINUTES OF ORDER

THE COURT ORDERS:

1. That the motion on notice dated 30 November 1988 by

Caboolture Park Shopping Centre Pty. Ltd.	("Caboolture
Park") seeking further and better particulars of	White
Industries (Qld.) Pty. Ltd.'s ("WIQ")	defence and
cross-claim be refused with costs.

2. That the motions on notice dated 29 November 1988 and

(1) That WIQ provide further and better particulars of

its "Scott" schedule.

( 2 ) That WIQ deliver affidavits containing the

evidence on which it proposes to rely in support of its cross-claim in respect of the second to twelfth respondents inclusive

be adjourned to a date to be fixed.

3. That liberty be reserved to either party to apply in

respect of the motions referred to in paragraph 2

hereof on not less than	48 hours notice in writing to
the other party.

4.     That the costs of both parties of this day, insofar as

they are referable to the motions referred to in

paragraph 2 of this order, be reserved.

- NOTE: Settlement and entry of orders is dealt with in 0.36 of

the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

QUEENSLAND	DISTRICT	REGISTRY	1	NO. G198 Of 1986
1

GENERAL DIVISION )

BETWEEN:  CABOOLTURE PARK SHOPPING

CENTRE PTY. LTD.

(Applicant)

-	AND :	WHITE INDUSTRIES (QLD.)
PTY. LTD.
(Respondent)
(First cross-Claimant)
AND :	CABOOLTURE PARK SHOPPING
-
CENTRE PTY. LTD. (First Cross-Respondent)

Coram: Ryan J.

Date:	2 December	1988
-

- Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: By motion on notice dated 30 November 1988,

the	applicant,	Caboolture	Park	Shopping	Centre	Pty.	Ltd.
("Caboolture	Park"),	seeks	an	order	that	the	first

respondent, White Industries (Qld.) Pty. Ltd. ("WIQ"),

deliver certain further and better particulars of its defence

and cross-claim in response to a request made on behalf of

Caboolture Park on 7 April	1987.	By paragraph 16(a) of its
defence, WIQ pleaded:-

"The Applicant interfered with	or obstructed the
issue of a certificate due under	the agreement.

Particulars

The	Applicant	instructed	the	architect	in	or
about	October	1986	not	to issue	any	further

certificates under the agreement"

Caboolture Park sought particulars of the instruction

allegedly given by it to its architect, Lynch & Blow Pty.

Ltd. ("Lynch & Blow"), in or about October 1986 and of the

other facts, matters and circumstances alleged to constitute

interference with or obstruction of the issue of the

certificate. By its response dated 1 May 1987 to the request

for further and better particulars, WIQ indicated that it

could not supply the particulars to which I have just

referred until after discovery.

By paragraph 26 of its cross-claim, WIQ pleaded:-

"In or about October 1986 the Cross-Respondent

instructed the architect not to issue any further

certificates under the said agreement."

Caboolture Park likewise requested particulars of the

instruction alleged to have been given by it to Lynch & Blow,

and WIQ similarly responded that it was unable to give those

particulars until after discovery. Caboolture Park has

contended that, as discovery has long since been provided,

WIQ should now be ordered to supply those particulars.

Me Fraser of Counsel for WIQ, on the other hand,

resists the motion by saying that it is no longer in issue

that Caboolture Park in or about October 1986 instructed its architect not to issue any further certificates under the

building contract. There has been tendered in evidence

earlier these in proceedings correspondence between

Caboolture Park and Lynch & Blow which included a letter

dated 24 October 1986 from Hersfield Development Corporation Pty. Ltd., on behalf of Caboolture Park, to Lynch & Blow which contained the instruction:-

"In reply to your letter dated 24.10.86 requesting

approval to Progress Claim No.12, please take

note our last instructions to all concerned, that all Project Claims, including variations, will as

of 15.10.86, be	processed	at our Melbourne
Office."
As I recall the oral evidence	so far given	in this

matter, it is not disputed that Lynch	& Blow was instructed
by officers or	persons acting on behalf of Caboolture Park

not to issue further certificates under the building contract without Caboolture Park's consent, and that in or about

November 1986 Lynch & Blow's	retainer as architect under the
contract was terminated.

Mr Fraser has indicated that, as he is presently

instructed, WIQ does not propose to adduce any further

evidence in respect of the alleged restriction or prohibition

placed by Caboolture Park on the issuing of certificates by

the architect. Since the function of particulars is to enable

the other side to know	in advance the case which	it has to
meet, there seems now to	be no	utility in requiring WIQ to

provide particulars of the instruction given by Caboolture

Park to its architect or of the facts and circumstances

alleged to constitute intereference with	or obstruction	of
the issue of certificates.

Accordingly, the motion related to the provision of

those particulars is refused, with costs.	However, should Mr
Praser's	instructions change and should additional evidence

be directed to the matters to which I have just referred,

steps can be taken to ensure that Caboolture Park is not

embarrassed as a result of the absence of the particulars

which it sought in April 1987.

Secondly, I have come to the conclusion in respect of

the remaining two motions that	it	is inappropriate to make
orders on those	at this stage.	I propose to adjourn those

motions, with liberty to either party to bring them on on n t

less than 48 hours notice in writing to the other party. I

now give these reasons for that decision.

By a further motion on notice dated 29 November 1988,

the applicant, Caboolture Park, seeks leave to dellver a

voluminous request for particulars of a "Scott" schedule

which has been filed herein on behalf of the firstnamed

respondent, WIQ,	and	to which Caboolture Park has made two
responses.

Another notice of motion dated 30 November 1988 seeks

an order that W1Q:-

"Deliver affidavits containing the evidence on

which it is proposed to rely in support of its

Cross-Claim in respect of the second to twelfth respondents inclusive within 14 days of the date

hereof. 'I

Mr Fraser has indicated that the preparation of further

affidavits of evidence to be adduced on behalf of WIQ has

already commenced in the light of the judgment which I gave

on 28 October 1988 on an application by Caboolture Park for leave further to amend its reply and defence to cross-claim.

He has further indicated that even more affidavits of

evidence may be filed on behalf of WIQ in the light of a

judgment presently reserved on alater application by

Caboolture Park for leave further to amend the same pleading.

Mr Perry of Counsel for Caboolture Park, for his part, Fraser are sufficiently detailed and complete, their service may obviate the need for further particulars of the "Scott" has indicated that if the affrdavits foreshadowed by M r

schedule sought by the notice of motion dated 29 November

1988. A related consideration is the xtent o which

Caboolture Park should be permitted, after it has closed its

case, to adduce evidence in rebuttal of WIQ's case on the

cross-claim.

In a judgment delivered on 22 August 1988, when I

required Caboolture Park to lead its evidence first, I said:-

"Until the recent compromise by WIQ of the claims

of the cross-claiming sub-contractors, it was reasonably to be expected that they would adduce

their evidence first. In the events which have

happened, WIQ will now be required to adduce all
of the evidence in relation to each particular

. - 6 -

sub-contract trade package by which it seeks to

make out its cross-claim for payment for its

performance of the head contract. Of necessity,

that evidence was not comprehended by the order

of 8 April	1988,	set	out	at	p. 4 of these
reasons,	that	WIQ file	and	serve	affidavits

containing the evidence-in-chief which it

proposes to adduce in support of its cross-claim

against Caboolture Park. It was recognized by a

Full Court of the Supreme Court of Queensland in
Downs Irrigation Co-operative Association Limited

v The National Bank of Australasia Limited 119831

Qd. R. 130 that a trial judge may, in the

exercise of a discretion, allow a party who

begins, to call, after the close of the case	for
the other party, rebutting evidence in respect	of

an issue on which the other party bears the onus

of proof.	Accordingly, I consider it appropriate
to reserve to Caboolture Park the	right described
in paragraph 3 of the directions given this	day."
In the light of all these considerations,	I consider it

appropriate to defer consideration of the remaining motions at least until after I have delivered judgment on Caboolture

Park's	latest application	for leave to amend its reply and
defence to WIQ's	claim.	Accordingly, those motions, being
the last two to which	I have referred,	are adjourned to a

date to be fixed, with liberty to either party to bring them

on again on not less than 48 hours notice to the other party.

I reserve the cost of both parties of this day insofar as

they are referable to the two last mentioned motions.

I certify that this and the

preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honor Mr Justice Ryan.

X 3 <v----

Associate