Parbery v QNI Metals Pty Ltd - [2019] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals Pty Ltd & Ors [2019] QSC 48

PARTIES:

STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
(first plaintiffs)

QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068
(second plaintiff)

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068
(third plaintiffs)

v

QNI METALS PTY LTD ACN 066 656 175
(first defendant)

QNI RESOURCES PTY LTD ACN 054 117 921
(second defendant)

QUEENSLAND NICKEL SALES PTY LTD
ACN 009 872 566
(third defendant)

CLIVE FREDERICK PALMER
(fourth defendant)

CLIVE THEODORE MENSINK
(fifth defendant)

IAN MAURICE FERGUSON
(sixth defendant)

MINERALOGY PTY LTD ACN 010 582 680
(seventh defendant)

PALMER LEISURE AUSTRALIA PTY LTD
ACN 152 386 617
(eighth defendant)

PALMER LEISURE COOLUM PTY LTD
ACN 146 828 122
(ninth defendant)

FAIRWAY COAL PTY LTD ACN 127 220 642
(tenth defendant)

CART PROVIDER PTY LTD ACN 119 455 837
(eleventh defendant)

COEUR DE LION INVESTMENTS PTY LTD
ACN 006 334 872
(twelfth defendant)

COEUR DE LION HOLDINGS PTY LTD
ACN 003 209 934
(thirteenth defendant)

CLOSERIDGE PTY LTD ACN 010 560 157
(fourteenth defendant)

WARATAH COAL PTY LTD ACN 114 165 669
(fifteenth defendant)

CHINA FIRST PTY LTD ACN 135 588 411
(sixteenth defendant)

COLD MOUNTAIN STUD PTY LTD ACN 119 455 248
(seventeenth defendant)

EVGENIA BEDNOVA
(eighteenth defendant)

ALEXANDER GUEORGUIEV SOKOLOV
(nineteenth defendant)

ZHENGHONG ZHANG
(twentieth defendant)

SCI LE COEUR DE L’OCEAN
(twenty-first defendant)

DOMENIC MARTINO
(twenty-second defendant)

and

MARCUS WILLIAM AYRES
(first defendant added by counterclaim)

STEFAN DOPKING
(second defendant added by counterclaim)

FILE NO:

SC No 6593 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application filed by leave on 30 January 2019 (CFI 479)

Application filed 1 February 2019 (CFI 482)

Application filed 14 February 2019 (CFI 503)

DELIVERED ON:

11 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. Each of the applications is dismissed.

2. The question of costs of each of the applications is reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – NON-COMPLIANCE – where application to increase the scope of disclosure – where failure to disclose is self-induced – whether extension should be granted to facilitate increased scope of disclosure – where extension will adjourn the trial

Uniform Civil Procedure Rules 1999 (Qld), r 5.

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303, cited.
Kelly v Westpac Banking Corporation [2014] NSWCA 348, cited.
Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 276, cited.
Queensland Nickel Pty Ltd v Queensland Nickel Sales Pty Ltd…

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: [2019] QSC 48
Decision Date: 11 March 2019

CaseChat Overview and Summary

Parbery v QNI Metals Pty Ltd involved the plaintiffs bringing an application to increase the scope of disclosure, which the defendants opposed on the grounds that the failure to disclose was self-induced by the plaintiffs. The case was before the Supreme Court of New South Wales. The plaintiffs argued that the proposed investigations could potentially yield relevant evidence and sought an extension of time to conduct these investigations. The defendants, however, contended that the trial, which had been meticulously case managed for two years, should not be delayed to allow the plaintiffs to conduct investigations that could have been undertaken much earlier.

The central legal issue before the court was whether an extension should be granted to facilitate increased scope of disclosure, particularly when such an extension would inevitably lead to the adjournment of the trial. The court had to balance the plaintiffs' right to a fair trial with the defendants' right to have the matter heard without undue delay. The court also needed to consider whether the proposed investigations were likely to yield relevant evidence that could impact the outcome of the trial.

In rendering its decision, the court emphasised that when applications of this nature are repeatedly made, particularly when they are based on similar or the same material, it serves little purpose to reiterate the relevant considerations in detail. The court noted that the circumstances under which the applications were made and the potential consequences of granting the orders—namely, the adjournment of the trial—weighed heavily against granting the extensions. Consequently, the court concluded that the applications must be dismissed to avoid further delays and to ensure the timely resolution of the proceedings.

The court's orders were clear and decisive. Each of the applications was dismissed, and the question of costs for each of the applications was reserved for a later determination. This decision underscored the importance of adhering to the case management process and the need to prevent unnecessary delays in the judicial process.

Orders

Orders of the court

The order of the court is that:

1. Each of the applications is dismissed.

2. The question of costs of each of the applications is reserved.

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

Last, the plaintiffs submit that ultimately the proposition is whether a nine week trial that has been case managed for two years ought to be delisted to permit the defendants to pursue investigations that could have been conducted years previously and in relation to which there is no evidence that the further proposed steps are likely to result in any further relevant evidence becoming available. Conclusion Most of the considerations discussed above point in the direction of refusing both the second disclosure applications and the second extension of evidence applications. When applications of these kinds are repeatedly made and based on similar material, or the same material, it serves little purpose to expand upon or discuss at length the relevant considerations in a repetitive way. To some extent, that has been unavoidable in these reasons. Nevertheless, the clear conclusion that follows from the circumstances under which the applications have been made and the consequence that making the orders sought would have upon the progress of the proceeding, including the vacation of the dates for the trial is that the applications must be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Parbery & Ors v QNI Metals Pty Ltd & Ors [2019] QSC 48
PARTIES:	STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (first plaintiffs) QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (second plaintiff) JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068 (third plaintiffs) v QNI METALS PTY LTD ACN 066 656 175 (first defendant) QNI RESOURCES PTY LTD ACN 054 117 921 (second defendant) QUEENSLAND NICKEL SALES PTY LTD ACN 009 872 566 (third defendant) CLIVE FREDERICK PALMER (fourth defendant) CLIVE THEODORE MENSINK (fifth defendant) IAN MAURICE FERGUSON (sixth defendant) MINERALOGY PTY LTD ACN 010 582 680 (seventh defendant) PALMER LEISURE AUSTRALIA PTY LTD ACN 152 386 617 (eighth defendant) PALMER LEISURE COOLUM PTY LTD ACN 146 828 122 (ninth defendant) FAIRWAY COAL PTY LTD ACN 127 220 642 (tenth defendant) CART PROVIDER PTY LTD ACN 119 455 837 (eleventh defendant) COEUR DE LION INVESTMENTS PTY LTD ACN 006 334 872 (twelfth defendant) COEUR DE LION HOLDINGS PTY LTD ACN 003 209 934 (thirteenth defendant) CLOSERIDGE PTY LTD ACN 010 560 157 (fourteenth defendant) WARATAH COAL PTY LTD ACN 114 165 669 (fifteenth defendant) CHINA FIRST PTY LTD ACN 135 588 411 (sixteenth defendant) COLD MOUNTAIN STUD PTY LTD ACN 119 455 248 (seventeenth defendant) EVGENIA BEDNOVA (eighteenth defendant) ALEXANDER GUEORGUIEV SOKOLOV (nineteenth defendant) ZHENGHONG ZHANG (twentieth defendant) SCI LE COEUR DE L’OCEAN (twenty-first defendant) DOMENIC MARTINO (twenty-second defendant) and MARCUS WILLIAM AYRES (first defendant added by counterclaim) STEFAN DOPKING (second defendant added by counterclaim)
FILE NO:	SC No 6593 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application filed by leave on 30 January 2019 (CFI 479) Application filed 1 February 2019 (CFI 482) Application filed 14 February 2019 (CFI 503)
DELIVERED ON:	11 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2019
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. Each of the applications is dismissed. 2. The question of costs of each of the applications is reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – NON-COMPLIANCE – where application to increase the scope of disclosure – where failure to disclose is self-induced – whether extension should be granted to facilitate increased scope of disclosure – where extension will adjourn the trial Uniform Civil Procedure Rules 1999 (Qld), r 5. AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management & Marketing Pty Ltd (2013) 250 CLR 303, cited. Kelly v Westpac Banking Corporation [2014] NSWCA 348, cited. Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 276, cited. Queensland Nickel Pty Ltd v Queensland Nickel Sales Pty Ltd…