Murphy Operator v Gladstone Ports Corporation (No 9)

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SUPREME COURT OF QUEENSLAND

CITATION:

Murphy Operator & Ors v Gladstone Ports Corporation (No 9) [2023] QSC 35

PARTIES:

MURPHY OPERATOR PTY LTD (ACN 088 269 596)
& ORS

(plaintiff)

v
GLADSTONE PORTS CORPORATION LIMITED (ACN 131 965 896)

(defendant)

FILE NO/S:

7495/17

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 March 2023

DELIVERED AT:

Rockhampton

HEARING DATE:

12 December 2022, 13 December 2022

JUDGE:

Crow J

ORDER:

1.   The parties are to provide minutes of orders consistent with these reasons.

CATCHWORDS:

PROCEDURE – CLASS ACTIONS OR GROUP PROCEEDINGS – PLEADINGS – TIME, EXTENSION AND ABRIDGMENT – PARTICULARS – where the plaintiffs seek leave to amend the further amended statement of claim - where a proposed second further amended statement of claim sought to include causes of actions for which time limitation periods have expired – whether applicant ought to be granted leave to amend the FASOC to include new cause of action according to the proper construction of s 103Z and 103ZA of the Civil Proceedings Act 2011 (Qld).

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – REPRESENTATIVE PARTY OR PROCEEDINGS – whether it is unnecessary to comply with r 376(4) of the Uniform Civil procedure Rules 1999 (Qld) due to suspension of limitation period in s 103Z of the Civil Proceedings Act 2011 (Qld) – whether group members can obtain a broader time limitation relief that what is available to representative parties.

Civil Proceedings Act 2011 (Qld) s 16(2), s 16(3), s 103A, s 103B, s 103H, s103M, s 103N, s 103V, s 103XB, s 103Z, s 103ZA, s 103ZB
Federal Court of Australia Act (1976) s 33C(1)
Federal Court of Australia Amendment Act 1991 (Cth)
Fisheries Act 1994 (Qld) s 37(2), s 78, s 79
Fisheries Regulations 2008 (Qld) (repealed)
Limitation of Actions Act 1974 (Qld)
Uniform Civil Procedure Rules 1999 (Qld) r 5, r 149(1)(b), r 150(1)(k), r 150(2), r 376(4), r 375, r 376(1)
Baldwin v Icon Energy Ltd [2018] QSC 233
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524
BHP Group Ltd v Impiombato (2022) 405 ALR 402
BMW Australia Limited v Brewster [2009] 269 CLR 574
Bright v Femcare Ltd [2002] FCAFC 243.

Cook v Cook (1986) 162 CLR 367 Gala v Preston (1991) 172 CLR 243
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Harper v Minister for Sea Fisheries (1989) 168 CLR 314

Hill v Van Erp (1997) 188 CLR 159

Ipex ITG Pty Ltd v Melbourne Water Corporation (No 2) [2005] VSC 258
Lee v Westpac Banking Corporation [2015] FCA 467
Mobil Australia Pty Ltd v Victoria [2002] 211 CLR 1
Murphy Operator & Ors v Gladstone Ports Corporation Ltd & Anor (No 4) [2019] QSC 228
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Pyrenees Shire Council v Day (1998) 192 CLR 330Quinlan v ERM Power Ltd No 1 [2021] QSC 35
Sanrus Pty Ltd & Ors v Monto…

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Details
Case
[2023] QSC 35
Decision Date

CaseChat Overview and Summary

The case of Murphy Operator v Gladstone Ports Corporation (No 9) involved the plaintiffs seeking leave to amend the further amended statement of claim in a class action proceeding. The plaintiffs sought to include new causes of action in a proposed second further amended statement of claim, some of which had expired under the statute of limitations. The legal issues before the court were whether the plaintiffs should be granted leave to amend the further amended statement of claim to include these new causes of action, and if the court should consider the proper construction of sections 103Z and 103ZA of the Civil Proceedings Act 2011 (Qld). The court also had to decide whether it was necessary to comply with rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) due to the suspension of the limitation period in section 103Z of the Civil Proceedings Act 2011 (Qld), and whether group members could obtain broader time limitation relief than what was available to representative parties.

The court found that the plaintiffs were seeking to include new causes of action which had expired under the statute of limitations, and thus, they ought not to be granted leave to amend the further amended statement of claim to include these new causes of action. The court held that the proper construction of sections 103Z and 103ZA of the Civil Proceedings Act 2011 (Qld) did not permit the plaintiffs to include new causes of action that had expired under the statute of limitations. The court further found that it was necessary to comply with rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) due to the suspension of the limitation period in section 103Z of the Civil Proceedings Act 2011 (Qld), and that group members could not obtain broader time limitation relief than what was available to representative parties.

The court ordered that the parties were to provide minutes of orders consistent with these reasons. The court also noted that evidence and pleadings should not be confused, and that the critical rules of pleading required the plaintiffs to plead and sufficiently particularise the material facts without pleading the evidence. The court held that the plaintiffs had not complied with these rules, and that the provision of particulars by reference to evidence, in particular, expert evidence, was not permissible.

Orders

Orders of the court

1. The parties are to provide minutes of orders consistent with these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There are, however, several other issues which can and should be subject to rulings at the present time intended to attempt to reduce the scope of further interlocutory proceedings regarding the 2FASOC. Evidence and Pleadings As to the second matter, GPC complains that particulars are given by reference to evidence, in particular, expert evidence, in breach of r 149(1)(b) of Uniform Civil Procedure Rules 1999 (Qld). In University of Sydney v ObjectiVision Pty Ltd [2016] FCA 1199, the Federal Court concluded that the provision of particulars by reference to an expert report and exhibits in the expert report confounded the plaintiff’s statement of claim and was therefore not permissible. Similar statements may be observed from Byrne J in Ipex ITG Pty Ltd v Melbourne Water Corporation (No 2) [2005] VSC 258 at [2]. There is, however, quite a distinct difference between complex case managed commercial litigation and litigation which does not fulfill those characteristics. This was well explained by Bond J in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd [2018] QSC 308, where his Honour said:“[29] The rules of pleading accommodate such concerns. Although there are others, critical rules include:(a)A plaintiff must plead the material facts which establish the causal link between the impugned conduct and the loss which is said to flow from it.(b)A plaintiff must plead the material facts, but not the evidence by which they will be proved.(c)The material facts must be pleaded and sufficiently particularised so that the defendant both knows the case it has to meet and has the plaintiff confined to that case, such that no change is permitted without first obtaining the leave of the court.[30]Compliance with these rules would require the plaintiffs to plead and to particularise the critical counterfactual proposition.[31]Where, as this case does, establishing the critical counterfactual proposition turns on expert opinion, the pleader’s task is a difficult one. Pleading at too high a level of generality will be an embarrassing pleading as the defendants will legitimately complain that they cannot sufficiently understand the case they have to meet, and they are unfairly being asked to respond to what can properly be described as a movable feast. On the other hand, pleading with too high a level of specificity will likely descend into pleading evidence not material facts, and have the potential downside of greatly confining the case to a particular mode of proving the material facts.” In Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199, Bond J said: “[13] Notwithstanding that pleadings do not state the evidence by which the pleaded material facts are to be proved, it has become commonplace in complex litigation that the Courts require the parties to disclose to each other before trial to a greater or lesser degree the evidence by which the parties will seek to prove the material facts they have pleaded (to the extent that proof is required because the material facts are disputed). Thus one sees case management orders and directions requiring parties to deliver in advance of a trial —(a)affidavits, witness statements or witness summaries identifying the evidence their respective lay witnesses will give at trial; and(b)expert reports expressing the expert opinion evidence which their respective expert witnesses will give at trial.[14]Where the issues in a case have already been identified by the traditional process of pleadings (which for the most will not have stated the evidence by which the issues will be proved), what is the purpose of the superimposition of an order requiring the parties to identify to their opponents during the pre-trial process the evidence by which they intend to prove their pleaded cases?[15]It is axiomatic that if case management orders have required the parties to disclose to their opponents the way they intend to prove their respective pleaded cases, that course was required because the Court determined that it would serve to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. But recitation of that sort of motherhood statement is not a sufficient articulation of the purpose of requiring such a course. The underlying purpose is to avoid surprise to the other party and to allow the issues to be narrowed, albeit at a more granular level than is achieved by the delivery of pleadings. It is to allow any eventual trial to proceed in a more efficient manner than it might otherwise have proceeded. In order to fulfil that purpose, it must follow that there is some degree to which the parties are confined to the manner of proving their case which they have flagged by the material which they have delivered in compliance with such case management orders. That is why such orders conventionally also specify that the parties may not deliver evidence outside the constraints of the orders concerned, except with leave of the Court. The extent of confinement which must be regarded as having been achieved by such orders and the attitude which must be taken to applications for leave will be very much a question of fact and degree, and will vary from case to case. The considerations which would be relevant to the exercise of a discretion to permit evidence to be adduced outside the constraints imposed by the case management orders of the type under discussion are similar to those applicable to pleading amendment: see Sanrus No 2 at [12] to [15].This authority has been cited with approval in the Queensland Court of Appeal on many occasions, including Bentleys (Sunshine Coast) Pty Ltd v Thomson [2018] QCA 358 per Fraser JA at [42]; Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 per Philippides JA at [22]; GO & MJT Nominees Pty Ltd v Hollywells Homewares Pty Ltd [2010] QCA 368 per McMeekin J at [20].”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.