Palaris Mining Pty Ltd v Short

[2012] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

Palaris Mining Pty Ltd v Short & Anor [2012] QSC 224

PARTIES:

PALARIS MINING PTY LTD
(applicant)
v
TERRENCE ANDREW SHORT
(first respondent)
and
TIFFANY ANN THOMSON
(second respondent)

FILE NO:

5931 of 2012

DIVISION:

Trial Division

PROCEEDING:

By way of application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

21 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2012

JUDGE:

Applegarth J

ORDERS:

1.    The search orders made by the Honourable Justice Byrne on 5 July 2012 be discharged.

2.    The applicant pay the first respondent and the second respondent’s costs of and incidental to the application on the standard basis to be assessed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – Inspection and interim preservation of property – the standard expected of a party on an ex parte application – where a “search order” granted ex parte pursuant to r 261 Uniform Civil Procedure Rules 1999 – where respondents in principal proceedings apply for discharge of search order on the basis of material non-disclosure – whether applicants failed to disclose facts material to granting search order – whether search order should be discharged on the basis of material non-disclosure by applicant

Uniform Civil Procedure Rules 1999 (Qld), r 261

Brink’s Mat Ltd v Elcombe and Others [1988] 1 WLR 1350, applied
Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683, applied
Hayden v Teplitzky (1997) 74 FCR 7, cited
Siporex Trade SA v Comdel Commodities Ltd [1986]
2 Lloyd’s Rep 428, cited
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, cited
Town & Country Sport Resorts (Holdings) Pty Ltd and Others v Partnership Pacific Ltd (1988) 20 FCR 540, cited

Williams (as liquidator of Willahra Pty Ltd (in liq) v Kim Management Pty Ltd [2012] QSC 143, cited

COUNSEL:

J W Fenton for the applicants/respondents in the principal proceeding
D P de Jersey for the respondent/applicant in the principal proceeding

SOLICITORS:

Turner Freeman for the applicants/respondents in the principal proceeding
Middletons for the respondent/applicant in the principal proceeding

1. On 5 July 2012 the applicant in the principal proceeding (“Palaris”) obtained “search orders” following an ex parte application before Byrne SJA.  The respondents (“Mr Short and Ms Thomson”) who were affected by those orders apply to set them aside on the grounds that Palaris failed to make full disclosure.

1. Mr Short and Ms Thomson were employees of Palaris until 30 May 2012 when they were handed letters of termination.  Mr Short was promised a payment in lieu of notice equivalent to two months’ pay in accordance with his contract and payment of any accrued leave.  He was told that these amounts would be credited to his bank account shortly.  In Ms Thomson’s case she was offered one month’s pay in accordance with her contract in a letter dated 30 May 2012, but then told that she would be given an additional month’s salary if…