Grimm v Six Continents Plc

[2005] QDC 268

[2005] QDC 268

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4031 of 2004

ERIC GRIMM	Plaintiff
and
SIX CONTINENTS PLC
(REGISTERED NUMBER 00913450)	First Defendant
and
WILLIAM EDWARDS	Second Defendant
And
SIX CONTINENTS HOTELS, INC	Third Defendant
BD4080 of 2004
JOHN MICHAEL CAMERON	Plaintiff
and
SIX CONTINENTS PLC
(REGISTERED NUMBER 00913450)	First Defendant
and
WILLIAM EDWARDS	Second Defendant
and
SIX CONTINENTS HOTELS, INC	Third Defendant
BD4070 of 2004
DAVID IVAN IRELAND	Plaintiff
and
SIX CONTINENTS PLC
(REGISTERED NUMBER 00913450)	First Defendant

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal

offence. Thi s is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for

their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ)

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and

WILLIAM EDWARDS	Second Defendant
and
SIX CONTINENTS HOTELS, INC	Third Defendant

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BD3190 of 2004

LEON RASHEED and KRISTA KERR	Plaintiffs
and
SIX CONTINENTS PLC
(REGISTERED NUMBER 00913450)	First Defendant
and	20
WILLIAM EDWARDS	Second Defendant
and
SIX CONTINENTS HOTELS, INC	Third Defendant
BD4008 of 2004

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BERNARDUS VAN DER WIJNGAART	Plaintiff
and
SIX CONTINENTS PLC
(REGISTERED NUMBER 00913450)	First Defendant
and

WILLIAM EDWARDS	Second Defendant	40
and

SIX CONTINENTS HOTELS, INC	Third Defendant
BD 4243 of 2004
JOHN STANLEY WRIGHT	Plaintiff

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and
SIX CONTINENTS PLC

(REGISTERED NUMBER 00913450)	First Defendant
and
WILLIAM EDWARDS	Second Defendant

2   60

25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ)

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and

SIX CONTINENTS HOTELS, INC	Third Defendant
BRISBANE
.. DATE 25/08/2005	10
ORDER
CATCHWORDS: Uniform Civil Procedure Rules r 429B - parties'
experts directed to meet to identify issues prior to a
scheduled mediation - time under Court order for defendant's
reports extended - defendants precluded from raising	20
unnotified differences from plaintiff's experts or relying on reports from their experts if time limits not met.
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40
HIS HONOUR: (1) Order that the time for provision of expert
reports by the defendants pursuant to Judge Griffin SC's order
of 27 July 2005 be extended to the 5th of September 2005 and
that the defendants be precluded from relying on any report	50

not so delivered without a special order of the mediator.
25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ) 3 60

(2) Order pursuant to rule 429B that the parties' valuation	1
experts, being Mr Smith for the plaintiff, and Mr Cox for the defendant, meet (not necessarily at a physical meeting), confer or liaise no later than the 1st of September 2005 and (a) identify the matters on which they agree, (b) identify the

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matters on which they disagree and the reasons why and (c)

attempt to resolve any disagreement.

(3) Order pursuant to rule 429B that the parties' accounting

experts, being Mr Lee for the plaintiff, and Ms Maguire and/or

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Mr McDonald for the defendants meet (not necessarily at a physical meeting) confer or liaise no later than 1st of September 2005 and (a) identify the matters on which they agree, (b) identify the matters on which they disagree and the reasons why and (c) attempt to resolve any disagreement.

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(4) Order that without a special order of the mediator the
defendant be precluded from raising any differences from
opinions set out in presently existing reports of their

counterparts on the plaintiff's side unless those are

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identified pursuant to orders (2) or (3), or in written notice
to the plaintiff on or before the 2nd of September 2005.
...
HIS HONOUR: In each I'll order that the defendants pay the applicant/plaintiff's costs of today's application to be

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assessed on the standard basis; liberty to apply.

This matter of Mr Grimm's is an application representative of
six others. He seeks redress in respect of a real property
25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ) 4 ORDER 60

investment which has turned sour against three defendants.	1
Pursuant to an order of Judge Griffin of the 27th of July 2005 the parties were required to and apparently did file a consent order for mediation, which is scheduled to occur in Canberra
on the 13th of September 2005.

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The difficulty that has arisen is because of the defendants' failure to comply with paragraph 1 of the Judge's order which required the defendants to serve any expert reports on which they intended to rely on or before 15th of August 2005. The

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defendants have had access to the plaintiff's experts' reports
for a long time.

My views on the matter had crystallised on the basis of helpful submissions of Mr Collins and Mr Anderson before I had

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read the plaintiff's application, which seeks fairly Draconian
relief, namely that "the defendants be prevented from relying
on any expert reports that they may adduce." There may be
cases where such strong action is necessary. We are still in

an era where reasonable indulgences are given to allow those

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involved in disputes a fair opportunity to present their best parties are very much at the mercy of any experts they wish to engage and that pressure of one kind or another, including
cases.

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prioritising of work, so far as experts are concerned, may
mean that timetables are not complied with. The usual
approach would be to set a new deadline by which the
25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ) 5 ORDER 60

defendants must present their reports. There is very little	1
time left for that.
Mr Anderson's suggestion is that the 5th of September 2005 be fixed. In my opinion, particularly having regard to the time

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the defendants' experts have taken to prepare their reports,
that would allow the plaintiff's side inadequate time to
prepare for the mediation, especially if genuinely surprising

contentions emerged in the defendants' experts' reports.

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It is appropriate for the plaintiff to come to the Court today pursuant to the liberty to apply reserved by Judge Griffin. I have already indicated the terms of the order that I think is
appropriate to meet the case in the Grimm matter. Similar

orders will be made in all six matters.

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Mr Collins expressed a proper concern that the lives of the experts not be unduly complicated by their being required to re-organise things so as to attend physical meetings. That is not the intention of the Court's order. The communications

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may be more informal by letter, telephone, e-mail, Internet

chat room, telepathy (if they are capable) or the like.

MR ANDERSON: Your Honour, may I clarify one matter? I take
it from your Honour's orders about the prohibition on reliance
on further expert evidence, given that it's absent a special

order by the mediator, applies only to the conduct of the	50
mediation and that your Honour doesn't intend there to be a general prohibition in the context of the trial?

HIS HONOUR: That's correct.
MR ANDERSON: Thank you.
HIS HONOUR: Because it's all about-----
25082005 T04/MV16 M/T CMS95/2005 (Robin DCJ) 6 ORDER 60

1

MR ANDERSON: It's all about the mediation.
HIS HONOUR: -----people having a fair opportunity to assimilate the other side's case.

MR ANDERSON: Thank you, your Honour.

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7 ORDER 60