Murphy v Gladstone Ports Corporation Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Murphy & Ors v Gladstone Ports Corporation Ltd [2019] QSC 12

PARTIES:

MURPHY OPERATOR PTY LTD (ACN 088 269 596)

(first plaintiff)

TOBARI PTY LTD (ACN 010 172 237)

(second plaintiff)

SPW VENTURES PTY LTD (ACN 135 830 036)

(third plaintiff)

v
GLADSTONE PORTS CORPORATION LIMITED (ACN 131 965 896)

(defendant)

FILE NO/S:

SC No 7495 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 February 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

30 November 2018 and 13 December 2018

JUDGE:

Crow J

ORDER:

The parties are to provide written submissions within two weeks hereof as to the appropriate form of orders.

CATCHWORDS:

COSTS - SECURITY FOR COSTS – FORM OF SECURITY – CHAMPERTOUS FUNDING ARRANGEMENT – where plaintiffs proposed a security in the form of a deed of indemnity from an English insurance company – where plaintiff also offered to pay $30,000 as actual security for costs incurred in enforcing the deed in England - where defendant seeks security by payment into court or bank guarantee – where parties disagree as to the form of security to be provided – whether deed of indemnity and actual security adequate to protect the defendant – whether deed of indemnity provided is at risk of forming part of a champertous funding arrangement  - whether form of security proposed imposes on the defendant an unacceptable disadvantage

PROCEDURE – DISCLOSURE – PRODUCTION AND INSPECTION OF DOCUMENTS – PRIVILEGE – LEGAL PROFESSIONAL PRIVILEGE - where defendant seeks disclosure of draft expert reports – where plaintiff argues that there is no requirement to disclose draft expert reports until it is deployed - whether draft expert reports must be disclosed under sub-rule 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the abrogation of privilege provided under sub-rule 212(2) ought to be confined to its ordinary meaning - whether communications passing between experts and lawyers are privileged

Civil Proceedings Act 2011 (Qld) s 13A, s 103K(2)(b), s 103ZA, s 103ZB
Foreign Judgments (Reciprocal Enforcements) Act 1933 UK, s 2
Uniform Civil Procedure Rules 1999 (Qld) r 5, r 211, r 212, r 423, r 425, r 426, r 427, r 428, r 429, r 429A, r 670(1), r 671E, r 673(1)

Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd & Anor [2017] VSC 200
Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
DIF III Global Co-Investment Fund, L.P. & Anor v BBLP LLC & Ors [2016] VSC 401
Elfic v Macks [2003] 2 Qd R 125
Energy Drilling Inc v Petroz NL (1989) §ATPR 40-954
Fisher v Bridges (1854) 3 E&B 642; 118 E.R. 1283
Fox v Percy (2003) 214 CLR 118
Global Access Ltd v Educationdynamics LLC [2010] 1 Qd R 525
Hickman v Turn and Wave Ltd [2013] 1 NZLR 741
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R…

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Details
Case
[2019] QSC 12
Decision Date

CaseChat Overview and Summary

In Murphy v Gladstone Ports Corporation Ltd, the plaintiffs sought to secure costs in the form of a deed of indemnity from an English insurance company, supplemented by an actual payment of $30,000. The defendant, Gladstone Ports Corporation Ltd, argued that this arrangement was inadequate and instead sought security by way of payment into court or a bank guarantee. The dispute came before the court for resolution of the appropriate form of security. Additionally, the defendant sought disclosure of draft expert reports, which the plaintiffs argued were not required to be disclosed until they were deployed.

The court was required to decide whether the proposed security by the plaintiffs was sufficient to protect the defendant and whether it potentially constituted a champertous funding arrangement, which is generally considered unacceptable. Furthermore, the court had to determine whether the form of security proposed by the plaintiffs imposed an unacceptable disadvantage on the defendant. In relation to the disclosure of draft expert reports, the court needed to ascertain whether the draft reports must be disclosed under sub-rule 212(2) of the Uniform Civil Procedure Rules 1999 (Qld) and whether communications between experts and lawyers are privileged.

The court examined the statutory framework and determined that the draft expert reports must be disclosed as per the requirements of sub-rule 212(2) of the UCPR. The court found that the abrogation of privilege under this sub-rule should be confined to its ordinary meaning, meaning that draft expert reports must be disclosed. The court also ruled that the proposed security by the plaintiffs, involving the deed of indemnity and the actual payment, was inadequate and potentially part of a champertous funding arrangement. The court therefore required a different form of security, such as payment into court or a bank guarantee, to adequately protect the defendant.

The court ordered the parties to provide written submissions within two weeks to determine the appropriate form of orders.

Orders

Orders of the court

The parties are to provide written submissions within two weeks hereof as to the appropriate form of orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Rule 427 provides:427 Expert evidence(1)Subject to subrule (4), an expert may give evidence-in-chief in a proceeding only by a report.(2)The report may be tendered as evidence only if—(a)the report has been disclosed as required under rule 429; or(b)the court gives leave.(3)Any party to the proceeding may tender as evidence at the trial any expert’s report disclosed by any party, subject to producing the expert for cross-examination if required.(4)Oral evidence-in-chief may be given by an expert only—(a)in response to the report of another expert; or(b)if directed to issues that first emerged in the course of the trial; or(c)if the court gives leave. Rule 429 provides:429 Disclosure of reportA party intending to rely on a report must, unless the court otherwise orders, disclose the report—(a)if the party is a plaintiff—within 90 days after the close of pleading; or(b)if the party is a defendant—within 120 days after the close of pleading; or(c)if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party. The difficulty in accepting the plaintiffs’ first two arguments is that r 212(2) was included in the original form of the UCPR and indeed is in precisely the same terms as its predecessor, order 35 rule 5(2) of the rules for the Supreme Court which was introduced on 1 May 1994. Chapter 11 Part 5 Expert Evidence, however, came into operation on 2 July 2004. The purposes of the new Chapter 11 Part 5 are set out in r 423 as follows:423 Purposes of pt 5The main purposes of this part are to—(a)declare the duty of an expert witness in relation to the court and the parties; and(b)ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and(c)avoid unnecessary costs associated with the parties retaining different experts; and(d)allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding. Chapter 11 Part 5 of the UCPR gives effect to the preference for a single expert where possible, and if not, requires a limitation in the number of experts and most importantly, early disclosure of expert evidence. In particular, as subject to limited exceptions, all expert evidence must be given by a report. The report is required to be disclosed, and the plaintiffs’ case, pursuant to r 429(a) within 90 days after the close of pleadings. That is, it is the intent of the rules to have a relatively early disclosure of the final report that a party wishes to rely upon as its primary expert evidence in court. That is why r 429 is explicit in its reference to the words “the report” and makes provision to r 429A for supplementary reports. Accordingly, the scheme set forth by Chapter 11 Part 5 is clear. That is, the actual report which any party wishes to rely upon must be disclosed early. The words in r 429 “intending to rely on a report” do not appear in r 212, nor do the words “a party intending to deploy a report” appear in r 212(2).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.