Parbery v QNI Metals Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 276

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 25 September 2018 (CFI 355) as amended on 9 November 2018 (CFI 434) and 21 November 2018 (CFI 444)

Application filed 17 October 2018 (CFI 376) as amended

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

21 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2018

JUDGE:

Jackson J

ORDER:

Order as per draft.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – ADJOURNMENT – where application to adjourn trial due to failure to comply with order for disclosure – where failure self-induced – where possible to complete disclosure in sufficient time before trial – whether trial dates should be vacated

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – NON-COMPLIANCE – where application for extension of time to complete disclosure – where non-compliance is self-induced by applicants’ failure to comply with earlier case management directions – whether extension should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where applications dismissed – where applications necessary due to failure to comply with…

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Details
Case
[2018] QSC 276
Decision Date

CaseChat Overview and Summary

Parbery brought proceedings against QNI Metals in the Supreme Court of Victoria. The dispute centred on a failure to comply with orders for disclosure of documents, which Parbery alleged led to prejudice in preparing for trial. QNI Metals applied for an adjournment of the trial date due to the non-compliance with the disclosure order, which it attributed to its own administrative oversight. Parbery opposed the adjournment, arguing that the non-compliance was self-induced and that sufficient time remained to complete the disclosure before the trial.

The court needed to decide whether the trial dates should be vacated due to the failure to comply with the disclosure order. It also had to determine whether an extension of time should be granted for the completion of disclosure when the non-compliance was due to the applicants’ failure to adhere to prior case management directions. Additionally, the court considered whether costs should be awarded on an indemnity basis due to the unreasonable conduct or delinquency relating to the proceedings, particularly in light of the applications being necessary because of the failure to comply with orders.

The court held that the failure to comply with the disclosure order was self-induced, and while there was sufficient time to complete the disclosure before the trial, the applicants' conduct warranted the vacating of the trial dates. The court found that granting an extension of time for disclosure was not appropriate given the self-induced nature of the non-compliance and the applicants' failure to follow earlier case management directions. Furthermore, the court awarded costs on an indemnity basis against the applicants for their unreasonable conduct, which necessitated the dismissed applications.

The final orders included vacating the trial dates, denying the extension of time for disclosure, and awarding costs on an indemnity basis against QNI Metals.

Orders

Orders of the court

Order as per draft.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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