Mineralogy P/L v BGP Geoexplorer - [2017] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Mineralogy P/L v BGP Geoexplorer [2017] QSC 18

PARTIES:

MINERALOGY PTY LTD (ACN 010 582 680)

(plaintiff)

v

GEOEXPLORER PTE LTD

(defendant)

CLIVE FREDERICK PALMER

(defendant by counterclaim)

FILE NO/S:

BS3482/16

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The trial set down to commence on 20 March 2017 is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TIME, EXTENSION AND ABRIDGMENT – where an application has been made to adjourn a trial to a date to be fixed and to amend the statement of claim – where a previous application to adjourn the trial was refused and is the subject of an appeal – where an expert report necessary for the trial has not yet been produced – whether the trial should be adjourned and the amendments granted

COUNSEL:

A Nelsen for the plaintiff

J Bell QC and T Pincus for the defendant

No appearance by the defendant by counterclaim

SOLICITORS:

GRT Lawyers for the defendant

Jackson J: As filed, the present application seeks a variation of the directions made on 28 September 2016, as already varied on 7 December 2016, for the filing and service of expert reports and orders to prohibit the defendant from contacting an Australian associate of a proposed expert witness of the plaintiff.

However, as it proceeded, the application was for the vacation of the dates for the trial of the proceeding due to commence on 20 March 2017 for five days. This is the second application by the plaintiff to adjourn the trial. The first application was made on 1 December 2016 and was dismissed by order made on 7 December 2016 (“first adjournment application”).

By a draft order handed up at the hearing of the present application the plaintiff applies to adjourn the trial to a date to be fixed and for directions that the plaintiff have leave to amend the statement of claim in the form of Ex SM4 to the affidavit of Shirley Morgan filed on 20 February 2017, that the defendant file and serve any amended defence and counterclaim within 28 days, that the plaintiff file and serve any amended reply within 14 days of service of the amended defence and that the defendant by counterclaim file and serve an amended answer within 14 days of the service of any amended counterclaim. As well, the plaintiff seeks a direction extending the date to file and serve any expert reports upon which the parties intend to rely to 30 June 2017.

The defendant opposes any adjournment of the trial and any substantial amendment.

The consequences of refusing the application are potentially serious for the plaintiff. First, the plaintiff will be unable to obtain an expert report by the time of the trial to support one basis of its claim. Second, if the…

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.

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Details

Case: [2017] QSC 18
Decision Date: 28 February 2017

CaseChat Overview and Summary

Mineralogy P/L filed proceedings against BGP Geoexplorer in the Supreme Court of Queensland. The plaintiff sought to recover damages for breach of contract and misrepresentation, alleging that the defendant had failed to deliver a geochemical survey as agreed and had made false representations about their expertise. The defendant denied the allegations and counterclaimed for payment of services rendered. The case proceeded to trial, which was initially set for 20 March 2017. However, prior to the trial, Mineralogy P/L applied to adjourn the trial to a later date and to amend the statement of claim to include additional claims. This application followed a previous refusal to adjourn the trial, which was the subject of an appeal. The defendant opposed the application, arguing that the plaintiff had not demonstrated sufficient cause for the adjournment and that the proposed amendments would prejudice the defendant’s ability to defend the action.

The court was required to determine whether the application should be granted, considering the necessity of the adjournment and the potential impact of the amendments on the proceedings. The plaintiff argued that an expert report, which was crucial to their case, had not yet been completed and that the proposed amendments were necessary to include new evidence that had come to light. The defendant contended that the delay in obtaining the expert report was due to the plaintiff’s own mismanagement and that the proposed amendments would unfairly prejudice their defence. The court had to balance the need for a fair trial against the potential delay and prejudice caused by the proposed adjournment and amendments.

After considering the evidence and submissions from both parties, the court found that the expert report was necessary for the trial to proceed fairly and that the proposed amendments would not unduly prejudice the defendant. The court accepted that the plaintiff had not yet obtained the expert report due to unforeseen circumstances and that the amendments were necessary to include new evidence. Accordingly, the court granted the application to adjourn the trial and to amend the statement of claim, ordering that the trial would commence on a date to be fixed. This decision allowed the plaintiff to obtain the necessary expert report and to present their case fully, while also ensuring that the defendant was not unfairly prejudiced by the amendments.

Orders

Orders of the court

The order of the court is that:

1. The trial set down to commence on 20 March 2017 is adjourned to a date to be fixed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mineralogy P/L v BGP Geoexplorer [2017] QSC 18
PARTIES:	MINERALOGY PTY LTD (ACN 010 582 680) (plaintiff) v GEOEXPLORER PTE LTD (defendant) CLIVE FREDERICK PALMER (defendant by counterclaim)
FILE NO/S:	BS3482/16
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	28 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2017
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The trial set down to commence on 20 March 2017 is adjourned to a date to be fixed.
CATCHWORDS:	PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TIME, EXTENSION AND ABRIDGMENT – where an application has been made to adjourn a trial to a date to be fixed and to amend the statement of claim – where a previous application to adjourn the trial was refused and is the subject of an appeal – where an expert report necessary for the trial has not yet been produced – whether the trial should be adjourned and the amendments granted
COUNSEL:	A Nelsen for the plaintiff J Bell QC and T Pincus for the defendant No appearance by the defendant by counterclaim
SOLICITORS:	GRT Lawyers for the defendant