International Cat Manufacturing P/L (in liq) v Rodrick

[2009] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:	International Cat Manufacturing P/L (in liq) & Anor v Rodrick & Ors [2009] QSC 254
PARTIES:	INTERNATIONAL CAT MANUFACTURING PTY LIMITED (IN LIQ) ACN 099 908 942 (first plaintiff)
DAVID HAMBLETON AND ROBERT MURPHY AS LIQUIDATORS OF INTERNATIONAL CAT MANUFACTURING PTY LIMITED (IN LIQ) ACN 099 908 942 (second plaintiffs)
v
RAYMOND JOHN RODRICK (first defendant)
NU-LOG PTY LIMITED ACN 001 420 515 (second defendant)
SUSAN RUTH CARTER AND JASON WALTER BETTLES (third defendants)
FILE NO/S:	BS 6045 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2009
JUDGE:	McMurdo J

ORDER:	1.	The plaintiffs shall, by 4.00 pm on Tuesday, 8 September 2009, serve on the defendants: –
(a)  Written statements of all the witnesses whom they propose to call at the trial, such statements: –

i.     To be signed by each witness; and

ii.   To contain the evidence-in-chief of each such witness on the issues on which the plaintiffs bear the onus of proof; and

(b)     The reports of any expert witnesses whom they propose to call at the trial; and

(c) A list of all documents that the plaintiffs intend to tender at trial; and 1

(d)      A list of all documents that the plaintiffs have supplied to each such expert.

2.    The plaintiffs shall not, at the trial, without special leave: –

(a) Adduce any evidence from any witness a statement from whom is not served by 4.00 pm on Tuesday, 8 September 2009; or 10

(b) Adduce any evidence from a witness that is not fairly contained in the written statement of that witness, served in compliance with paragraph 1(a) of this order; or

(c) Adduce any expert evidence from an expert that is not fairly contained in the report of that expert, served in compliance with paragraph 1(b) of this order; or 20

(d) Tender any document that is not identified in compliance with paragraphs 1(c)

3.   The matter is adjourned for further review on 21 September 2009 at 9.30 am.

4. The plaintiffs shall pay the defendants’ costs of and incidental to the proceedings on 9 July 2009 and of today, the costs of today to be on the indemnity basis. 30

CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE –
QUEENSLAND – PROCEDURE UNDER RULES OF
COURT – OTHER MATTERS BEFORE TRIAL – where the
Court had ordered the plaintiffs to serve written summaries of
the evidence-in-chief of the witnesses on whom they intend
to rely in respect of those issues on which the plaintiffs bear
the onus of proof – where the summaries identified the
witnesses simply as “the liquidator, former employees,
suppliers, customers and the other directors of the company” 40
– where the summaries state that the plaintiffs intend to rely upon “the final solvency report to be prepared by the liquidator” – whether this complies with the orders made
COUNSEL:	J K Ratanatray for the plaintiffs S C Russell (sol) for the first and second defendants C Coulsen for the third defendants
SOLICITORS:	Piper Alderman for the plaintiffs  50
Russell and Company for the first and second defendants QBM Lawyers for the third defendants

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

McMURDO J

No 6045 of 2007	10
INTERNATIONAL CAT MANUFACTURING
PTY LIMITED (IN LIQ) ACN 099 908 942	First Plaintiff
and
DAVID HAMBLETON and ROBERT MURPHY AS
LIQUIDATORS OF INTERNATIONAL CAT
MANUFACTURING PTY LIMITED (IN LIQ)
ACN 099 908 942	Second Plaintiffs 20
and
RAYMOND JOHN RODRICK	First Defendant
and
NU-LOG PTY LIMITED ACN 001 420 515	Second Defendant
and	30
SUSAN RUTH CARTER AND JASON WALTER
BETTLES	Third Defendants
BRISBANE	40
..DATE 25/08/2009 HIS HONOUR: On the 23rd of April this year I made orders by

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consent one of which was that the plaintiffs serve written
summaries of the evidence-in-chief of the witnesses on whom
the plaintiffs rely in respect of those issues on which the
plaintiffs bear the onus of proof, those summaries to be

provided by 4 June 2009. With the consent of all parties it	10
seems that that date was extended although there was no order to that effect.
On the 9th of July the summaries had not been provided and I
made a further order in the same terms providing for those	20
summaries on or before the 12th of August. On that occasion
counsel for the plaintiffs said that there would be a
difficulty in completing the summaries of evidence before the
12th of August and the plaintiffs sought that date. The
defendants, or at least the first and second defendants,	30
resisted that extension but I was persuaded to grant it.
Nothing was provided by the 12th of August. After the matter
was relisted for today, what purports to be a summary in
compliance with my order was provided yesterday.	40
The content of a summary of evidence ought to be well
understood by practitioners concerned with matters in this
List. The provision of summaries of evidence has been a
practice adopted in this List now for some years and is	50
usually something which gives rise to no difficulty or debate. On any view, what was provided yesterday as a purported summary is no such thing. For example, the proposed witnesses are identified simply as the liquidator, former employees,

1

suppliers, customers and the other directors of the company.

The liquidators say that on the critical issue of the solvency
or insolvency of the company over a period from November 2003

to August 2005, the plaintiffs intend to rely upon "the final	10
solvency report to be prepared by the liquidator of the
company, a draft version of which is annexed to the affidavit
of one of the liquidators sworn 24 April 2009." That
reference to "the final solvency report to be prepared by the
liquidator" is made in several places within this purported	20
summary. So the liquidators have offered as a summary of the evidence to be called by them a reference to a document which they themselves are yet to sit down and write. And this is in the context of orders which go back to last April.
30
Moreover, rather than seeking to explain their default and
approaching the Court for some extension or relief from the
operation of the orders, the liquidators have chosen to
instruct their lawyers and in particular their counsel to come
along and make the quite hopeless submission that they have	40
complied with the directions, and, moreover, that the case is ready for trial, at least on the plaintiff's side of it, and that the Court should allocate trial dates.
I have to say that the approach by the liquidators in those	50
respects to this litigation is disappointing. There may be many reasons why this case has not been prosecuted as I think it should have been. But it is incumbent upon liquidators to be frank with the Court in that respect, whatever may be the

1

reasons.

Suffice it to say that the case is far from ready for trial
and there is no reason why this case should be advanced beyond

the queue of those which are ready for trial and are waiting	10
for trial dates.
The first and second defendants seek orders intended to have the effect which the orders for summaries of evidence should have had. But rather than seeking simply another order for	20
summaries of evidence, the first and second defendants seek
orders for the provision of written statements of the
witnesses proposed to be called by the plaintiffs, reports of
any experts proposed to be called, and a list of documents
proposed to be tendered or which have been supplied to such	30
experts.
The further orders sought are that the plaintiffs should not
at a trial without special leave adduce any evidence from a
witness from whom a statement has not been obtained and served	40
or adduce evidence from a witness that isn't fairly contained in the written statement of that witness, with a similar direction in relation to expert evidence.
The purpose of those directions would not be to have the trial	50
proceed as a trial on affidavit but rather to ensure that the defendants are sufficiently notified of the content of the plaintiff's case so that they can prepare their response and

1

they are not taken by surprise.

The conclusion I have reached is that orders as are sought by
the first and second defendants, which are supported by the

third defendants, should be made. The purpose of those orders	10
should have been served by the orders which have been made for summaries, but I accept that were I to make yet another order for summaries of evidence, there would be little prospect that it would serve that purpose.
20
The proposed order seeks the provision of those statements and
reports and lists by 8 September 2009 which, in the
circumstances, seems reasonable. The matter will then come
back for further review in September and the questions which
are likely to arise then are whether, as has been suggested by	30
the third defendants, there should be a trial of the issues
other than those raised by paragraphs 50 and 51 of the
statement of claim in advance of the issues raised within
those paragraphs. Those paragraphs plead the particular case
against the third defendants. I would not be minded to make	40
that order unless the third defendants agreed to be bound by the outcome in a preliminary trial, assuming that they would not actively participate in it. As to that, counsel for the third defendants said that he would wish to know more of the plaintiff's case before he responded to that qualification:	50
hence, again the need for these statements of witnesses. The other order which is sought is that the plaintiffs pay the

1

defendants' costs of and incidental to the proceedings on 9

July and of today on the indemnity basis.

The comments I have made already should demonstrate why the

defendants should have their costs of today on the indemnity	10
basis. I am not persuaded that the same might be said about proceedings on 9 July but the defendant should have those costs.
The orders will be in terms of paragraphs 1 and 2 of the draft	20
provided by Mr Russell appearing for the first and second
defendants; paragraph 3 of that draft will be completed to
insert a review date of 21 September 2009 at 9.30. Paragraph
4 will be amended to read as follows: The plaintiffs shall pay
the defendants’ costs of and incidental to the proceedings on	30
9 July and of today, the costs of today to be on the indemnity basis.

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