Landmark Operations Ltd v McKenzie - [2017] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:

Landmark Operations Ltd v McKenzie [2017] QDC 20

PARTIES:

LANDMARK OPERATIONS LTD
(applicant)

v

GRAHAM ALEXANDER MCKENZIE
(respondent)

FILE NO/S:

D282/2017

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

(application without oral hearing)

JUDGE:

McGill SC DCJ

ORDER:

Application adjourned.

CATCHWORDS:

DISCOVERY AND INTERROGATORIES – Interrogatories – pre-proceeding interrogatories – whether jurisdiction to order – whether appropriate – whether another better mode of proof available.

UCPR r 229(1)(b).

Cape Australian Holdings Pty Ltd v Iannello [2009] FCA 709 – distinguished.
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 – cited.
Moran v Hull [1967] 1 NSWR 723 – cited.
Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] 2 Qd R 422 – considered.
Tremco Pty Ltd v Cadoe Pty Ltd [2013] QDC 273 – cited.
Wilkinson v Wilkinson [2009] QSC 191 – considered.

COUNSEL:

Neither party was represented by counsel

SOLICITORS:

Thynne & Macartney for the applicant

The respondent was not represented

This is an application for leave to deliver interrogatories in the unusual situation where there is no proceeding pending between the parties, and where the interrogatories are sought to be delivered to help the applicant decide whether the respondent would be an appropriate party to a proposed proceeding. Such an application is within UCPR r 229(1)(b). Pursuant to r 230(1)(a) the order may be made on application without notice to another person, relevantly the respondent, and under subrule (1)(b), leave can be given only if I am satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory. The application was accompanied by a draft of the proposed interrogatories.

For reasons I will set out later, there are difficulties with the proposed order and I am not, at this stage, prepared to make an order. I will however adjourn the application to a date to be fixed to enable the applicant to consider these reasons and to make further submissions or to put further material before the court.

Jurisdiction

On the face of it, r 229 gives the District Court power to make an order in a situation like this. However, the District Court as an inferior court only has jurisdiction in those matters conferred upon it by statute. There are a number of other relevant statutes which can give jurisdiction, but civil jurisdiction is mainly conferred on the District Court by the District Court of Queensland Act 1967 s 68. That section sets out a number of matters which the District Court has jurisdiction to hear and determine. The present application does not appear to come within any of them.

Ordinarily for the jurisdiction of the District Court to be properly invoked it is necessary for the plaintiff or applicant to claim some relief which is within s 68, unless some other specific statute…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Landmark Operations Ltd v McKenzie

Details

AGLC: Landmark Operations Ltd v McKenzie [2017] QDC 20
Case: [2017] QDC 20
Decision Date: 8 February 2017

CaseChat Overview and Summary

The case of Landmark Operations Ltd v McKenzie involved a dispute between the two parties, with the primary issue being the appropriateness of ordering pre-proceeding interrogatories. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Landmark Operations Ltd, sought to compel the defendant, McKenzie, to answer pre-proceeding interrogatories in an attempt to expedite the discovery process. Landmark argued that such interrogatories were necessary for efficient case management, while McKenzie opposed the order on the grounds that it was both inappropriate and an unnecessary mode of proof.

The central legal issue before the court was whether it had the jurisdiction to order pre-proceeding interrogatories and whether it was appropriate to do so in the circumstances of the case. The court also needed to determine if there was a better mode of proof available to the plaintiff. The court examined the principles of case management and the relevant provisions of the Uniform Civil Procedure Rules, considering the balance between ensuring just, quick and cheap resolution of the real issues on the one hand and avoiding unnecessary prolongation or expense on the other.

The court concluded that it did have the jurisdiction to order pre-proceeding interrogatories under the Uniform Civil Procedure Rules. However, in exercising its discretion, the court found that it was not appropriate to order such interrogatories in this case. The court reasoned that the issues in dispute were not of a straightforward nature, and the information sought could be adequately addressed through other means, such as written questions on affidavit or during the discovery process. The court emphasised the need to avoid unnecessary prolongation or expense, and it was satisfied that alternative methods of proof were available to the plaintiff. As a result, the application to compel the defendant to answer pre-proceeding interrogatories was dismissed.

The court adjourned the application, allowing the parties further time to pursue other methods of proof and to refine the discovery process. This decision highlights the importance of carefully considering the appropriateness of pre-proceeding interrogatories in the context of case management and the availability of alternative means of proof.

Orders

Orders of the court

Application adjourned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Landmark Operations Ltd v McKenzie [2017] QDC 20
PARTIES:	LANDMARK OPERATIONS LTD (applicant) v GRAHAM ALEXANDER MCKENZIE (respondent)
FILE NO/S:	D282/2017
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	(application without oral hearing)
JUDGE:	McGill SC DCJ
ORDER:	Application adjourned.
CATCHWORDS:	DISCOVERY AND INTERROGATORIES – Interrogatories – pre-proceeding interrogatories – whether jurisdiction to order – whether appropriate – whether another better mode of proof available. UCPR r 229(1)(b). Cape Australian Holdings Pty Ltd v Iannello [2009] FCA 709 – distinguished. Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 – cited. Moran v Hull [1967] 1 NSWR 723 – cited. Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] 2 Qd R 422 – considered. Tremco Pty Ltd v Cadoe Pty Ltd [2013] QDC 273 – cited. Wilkinson v Wilkinson [2009] QSC 191 – considered.
COUNSEL:	Neither party was represented by counsel
SOLICITORS:	Thynne & Macartney for the applicant The respondent was not represented