Murphy Operator v Gladstone Ports Corporation (No 5)

Link copied
Case Copied 33 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy Operator & Ors v Gladstone Ports Corporation & Anor (No 5) [2020] QSC 36

PARTIES:

MURPHY OPERATOR PTY LTD

ACN 088 269 596

(first plaintiff/first applicant)

TOBARI PTY LTD
ACN 010 172 237

(second plaintiff/second applicant)

SPW VENTURES PTY LTD
ACN 135 830 036

(third plaintiff/third applicant)

v

GLADSTONE PORTS CORPORATION LIMITED
ACN 131 965 896
(defendant)

STATE OF QUEENSLAND

(respondent)

FILE NO/S:

SC No 7495 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

6 March 2020

DELIVERED AT:

Rockhampton

HEARING DATE:

2 March 2020

JUDGE:

Crow J

ORDER:

1.   The stay arising from the objection to the notice of non-party disclosure is lifted.

2.   The notice of non-party disclosure is amended as follows:

a.   The relevant period for each of the requests for documents is amended to January 2005 to 30 September 2019.

b.   The nominated party, the State of Queensland Department of Agriculture and Fisheries is to produce the documents prior to 31 March 2020.

3.   If the parties cannot agree as to costs, written submissions are to be filed 7 days hereof.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DOCUMENTS IN POSSESSION OF NON-PARTY – where plaintiff served notice of non-party disclosure on the respondents – where the respondents filed objection to the notice – where application by plaintiff for lift of the stay imposed by objection – whether the scope of the notice was too broad – whether the production of the documents would be too onerous on non-party – whether requested documents where subject to confidentiality requirements

Fisheries Act 1994 (Qld) s 217B
Uniform Civil Procedure Rules 1999 (Qld) r 242, r 244, r 245, r 247

Murphy Operator & Ors v Gladstone Ports Corporation & Anor (No 4) [2019] QSC 228
Naskam Security Services Pty Ltd v Adarm Security Pty Ltd & Ors [2000] QDC 441
Smith v O’Leary & Anor [2001] QDC 197

Westsand Pty Ltd v Johnson [1999] QSC 337
COUNSEL:

L W L Armstrong QC, with M J May, for the applicants

S B Hooper for the defendant 

S C Russell for the respondent
SOLICITORS:

Clyde & Co for the applicants

King & Wood Mallesons for the defendant

Crown Law for the respondent

  1. A history of this matter is set out in my prior judgment, Murphy Operator & Ors v Gladstone Ports Corporation & Anor (No 4) [2019] QSC 228.

  2. Rule 242 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides:

    “242 Notice requiring non-party disclosure

    (1) A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document—

    (a)     directly relevant to an allegation in issue in the proceeding;…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Murphy Operator v Gladstone Ports Corporation (No 5) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] QSC 36
Decision Date

CaseChat Overview and Summary

In the case of Murphy Operator v Gladstone Ports Corporation (No 5), the plaintiffs sought to serve a notice of non-party disclosure on the respondents, requiring the production of certain documents. The respondents objected to the notice, leading the plaintiffs to apply for a lifting of the stay imposed by the objection. The legal issues before the court included whether the scope of the notice was too broad, whether producing the documents would be too onerous for the non-party, and whether the requested documents were subject to confidentiality requirements.

The court considered the application of non-party discovery rules under the UCPR, referencing Westsand Pty Ltd v Johnson. The judge examined the relevance of the documents, concluding that while some documents were not directly relevant to the specific allegation mentioned in the notice, special circumstances allowed for consideration of other allegations. The court also addressed the confidentiality objection, noting that while the documents dealt with sensitive information, the party gaining access to them was subject to an implied undertaking not to misuse them. The judge determined that the confidentiality argument was not sufficient to refuse an order for production.

The court lifted the stay imposed by the objection and amended the notice of non-party disclosure to specify the relevant period for document requests and the production deadline. If the parties could not agree on costs, they were directed to file written submissions within seven days.

Orders

Orders of the court

1. The stay arising from the objection to the notice of non-party disclosure is lifted.

2. The notice of non-party disclosure is amended as follows:

a. The relevant period for each of the requests for documents is amended to January 2005 to 30 September 2019.

b. The nominated party, the State of Queensland Department of Agriculture and Fisheries is to produce the documents prior to 31 March 2020.

3. If the parties cannot agree as to costs, written submissions are to be filed 7 days hereof.

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

Rule 247 of the UCPR provides:“247Court’s decision about objection(1)Within 7 days after service of an objection under rule 245, the applicant may apply to the court for a decision about the objection.(2)The court may make any order it considers appropriate including, but not limited to an order—(a) lifting the stay; or(b) varying the notice of non-party disclosure; or(c) setting aside the notice.(3)Unless the court otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.(4)The court may make an order for subrule (3) if, having regard to the following, the court considers that the circumstances justify it—(a) the merit of the objector’s objections;(b) the public interest in the efficient and informed conduct of litigation;(c) the public interest in not discouraging objections in good faith by those not a party to the litigation.” On 27 February 2020, the plaintiffs made an application pursuant to r 247 UCPR to lift the stay arising from the objection to the notice of non-party disclosure. DAF’s notice of objection is conveniently set out in three paragraphs, with each paragraph addressing objections highlighted in r 245(4). Namely, objections regarding the relevance and lack of particularity;[3] time, expense and convenience;[4] and confidentiality.[5] [3]UCPR r 245(4) (b), r 245(4) (c). [4]UCPR r 245(4) (a). [5]UCPR r 245(4) (e). Wilson J discussed the application of non-party discovery rules under the UCPR in Westsand Pty Ltd v Johnson [1999] QSC 337, where her Honour said:“[7]The substantial objection to production of the documents was on the ground of relevance. Rule 242(1) provides:‘A party (the “applicant”) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (the “respondent”) to produce to the applicant, within 14 days after service of the notice on the respondent, a document -(a) directly relevant to an allegation in issue in the pleadings; and(b) in the possession or under the control of the respondent; and(c) that is a document the respondent could be required to at the trial of the matter.’The test is direct relevance, as it is in disclosure inter partes (r 211); i.e. whether a document would tend to prove or disprove an allegation in issue on the pleadings. This is in contrast to the train of inquiry test which applied in discovery inter partes until 1994: The Campagnie Financiere et Commerciale Du Pacifique v The Peruvian Guano Co (1882) QBD 55.[8]By r 243(1)(b) -‘(1) A notice of non-party disclosure must -...(b)state the allegation in issue in the pleadings about which the document sought is directly relevant.’This is a recognition that non-party disclosure is an imposition on a stranger to litigation. In the usual case the respondent will have no knowledge of the proceedings and will not have copies of the pleadings; it should not be expected to have to call for these and analyse them.[9]In the present case the following allegation is set out in the notice as being the one to which the documents are relevant:-‘1.That the Plaintiff issued a "running sheet” to the Defendant on 5 June 1998 requiring the defendant to collect and carry cash from various clients in an unarmoured car which the Plaintiff knew, or ought to have known, would require the Defendant to carry cash exceeding $75,000.00.’(Paragraph 7(a) of the Amended Defence which is exhibit C to the affidavit of Delany filed on 14 October 1999.)[10]I accept the submissions of the respondent's solicitor that none of the documents described in the notice has direct relevance to this allegation.[11]The applicant's counsel submitted nevertheless that the documents were of direct relevance to a number of other allegations in the pleadings. It is the clear intent of rr. 242-249 to minimise the imposition of non-party disclosure on a stranger to litigation. Accordingly, a party in the position in which the present applicant finds himself ought not ordinarily to be allowed to seek to uphold the notice by assertion of direct relevance to other allegations in the pleadings. The circumstances of the present application are somewhat unusual. From correspondence in evidence it seems that the respondent has had solicitors acting for it in relation to non-party disclosure since at least June 1999; indeed it may even have been served with an earlier notice of non-party disclosure. Those solicitors are fully acquainted with the pleadings. It is the duty of the court to avoid undue delay, expense and technicality (r 5(3)). In the special circumstances of this application I am prepared to consider the other allegations to which the documents are submitted to be directly relevant.[…][14]One of the grounds upon which objection was taken was the confidential nature of the documents (r 245(4)(e)). In oral submissions the plaintiff's solicitor said:-‘Any document that deals with arrangements regarding the collection of cash ought to be one which is not bandied around except where it's expressly required to be given to a party or to somebody with legitimate and reasonable reason to have a look at it.’A party gaining access to a document pursuant to a notice of non-party disclosure is subject to an implied undertaking not to use it except for the purpose of the litigation. (Consider Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, a case concerned with discovery inter partes.) In the circumstances I would not refuse an order for production on the basis of a confidential nature of the contract.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.