Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd

[1989] FCA 293

JUCSFL~ENT No. . ........ . ..., A93 7 89-

l

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G125 of 1984

GENERAL DIVISION 1

BETWEEN: QUEENSLAND WIRE INDUSTRIES PTY LTD

Applicant

AND: THE BROKEN HILL PROPRIETARY COMPANY LIMITED

First Respondent

AND: AUSTRALIAN WIRE INDUSTRIES PROPRIETARY LIMITED

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	6 JUNE 1989
WHERE EIADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the respondents' application made by the notice of motion filed on 2 June 1989 be dismissed;

2.    the respondents pay the costs of and incidental to that application;

Order 36 of the Federal Court Rules. ',

3.   the applicant's application in relation to discovery be adjourned to 9 a.m. on Thursday, 15 June 1989;

4.   the costs of the applicant's application for discovery be reserved to that date.

NOTE :  Settlement and entry of orders is dealt with in

QLD G125 of 1984

BETWEEN: QUEENSLAND WIRE INDUSTRIES PTY LTD

Applicant

AND: THE BROKEN HILL PROPRIETARY COMPANY LIMITED

First Respondent

AND: AUSTRALIAN WIRE INDUSTRIES PROPRIETARY LIMITED

Second Respondent

PINCUS J. 6 JUNE 1989

EX TEMPORE REASONS FOR JUDGMENT

On 2 June 1989 the respondents filed an application seeking orders that an amended application specifying the precise order or orders sought by the applicant be filed and, in the alternative, a direction that written notice be given to that effect.

In the course of explaining the reasons for the application's having been made, Mr Byrne Q.C., senior counsel for the respondents, rather broadened and ramified it. He explained to me that he wished to have, if possible, a better and more precise response to offers of settlement which had been made by the respondents. He also wished to have the trial of the question of relief split, in effect, so that there would be an initial

determination of the principles upon which damages should be granted, then discovery, and then a determination of the amount of damages, if any. He argued that the Court's allowing the matter to follow the ordinary course could produce oppression for the respondents, particularly in requiring the respondents to make discovery of what he described as a fishing kind. He suggested that if the course which he advocated was not: taken, the trial might be lengthy and perhaps take months. In essence, then, what the application seeks is the establishment in advance of the trial of the principles upon which the question of relief should be determined, particularly in relation to the question of damages.

It is worthwhile briefly to recount the history of this matter, although it is well known to the parties. There was a trial before me in 1987 at which the applicant failed on the basis of a contention which was subsequently held by the High Court to be wrong - that is, my decision on the contention was wrong. I did not determine what relief would have been granted had the judgment been for the applicant. When the matter went to the Full Court of this Court, again no determination was made on the question of relief and when the matter went to the High Court,	although (as I am informed) there was some attention directed to	the matter of relief, the High Court found it unnecessary to say
anything on that question, which I regard as a difficult one.
The fundamental problem which is raised by Mr Byrne, and raised in a way which I do not regard as frivolous or unhelpful, is whether it is convenient at this stage to follow the course which he advocates of splitting the already split trial further, or to let matters proceed as they ordinarily would. It is, I think, unusual to have a trial split into three parts, which would be the effect of Mr Byrne's contention. (It has already been split once, in that a determination of liability has preceded any attention to relief.) I can see some practical advantages in the course which Mr Byrne advocates but, on the other hand, there are disadvantages and it is worthwhile saying something about them.
The litigation is one in which a relatively small company, the applicant, is opposed to a large company. This situation may be expected to be reasonably common, although not by any means universal in cases of this sort. It would seem to me undesirable, from the point of view of principle, to encourage the thought that access to relief in cases of this kind is restricted to those who can afford a very long course of interlocutory proceedings before obtaining a final determination. Mr Byrne says that splitting the matter further may actually save time and cost.
I am sceptical about that. The possibility arises that if a
decision is given as to the principles upon which relief should be granted, one side or the other may feel inclined to attempt to
uncertainty of this area of law being such as it is, that the Full challenge that interlocutory decision and one would expect, the Court may well entertain such a challenge. On the other hand, if the matter is allowed to proceed in the ordinary course -- particularly if, as Mr Gore Q.C., who is senior counsel for the applicant, suggests, discovery can be had without placing any crippling burden on the respondents -- it may be that the
principles, the facts and the relief can be conveniently determined in the one hearing.
To get back to the initial form of fir Byrne's application which, as I say, he rather expanded in the course of discussion, I can see that it might suit the respondents if the applicant were to say precisely what formula was thought to be the appropriate one for damages, but in the peculiar circumstances of this case it would be wrong to require the applicant to do that.
I think its advisers simply do not know enough about the facts to
reduce their claim to a precise formula at the present time.
The alternative suggestion is that the applicant be required to set out the principles on which damages should be assessed. I do not think that is going to produce anything very useful, because such an order could be complied with without, in reality, bringing any greater precision to the exercise; for example, by setting out a number of alternative possible bases for the assessment of damages. I have therefore determined to dismiss Mr Byrnels application made by the notice of motion which was
costs of and incidental to that application. filed, as I have said, on 2 June and the respondents must pay the The two other matters which are before me are that this is an ordinary mention date and that fir Gore has made an application in relation to discovery. Mr Byrne says that he would like more time to consider the matter of discovery and that is not opposed. There does not seem to be anything useful that can be done by way of ordinary directions, but I have decided to adjourn the application for discovery to 9 a.m. on Thursday, 15 June, when a reasonable time will be available to deal with any dispute about discovery, and also, I hope, to make directions designed to take the matter to trial.
The trial is set down for Monday, 21 August. The case was started in 1984 and we are now in 1989. Although it is an unusual piece of litigation, and keeping in mind the likelihood or at least possibility of appeals from the order for final relief, it seems to me desirable to try to move the matter along so that
it is finished within, say, five years from its inception.
I do not propose to make any order for costs with respect to what might be called the ordinary directions aspects of today, because no progress has been made there. As to Mr Gore's application for discovery which was made today, I will reserve any costs associated with that for disposition on Thursday, 15 June.
I reiterate that I hope that the parties then would come with the
idea that it be the last major directions hearing before trial, at which the mode of trial and any other matters likely to require decision can be dealt with.

1 certify that this and the ~ O U J preceding

pages are a true copy of the reasons for	-
iudgrnent hcrein of His Honour
Mr. Justice P i n u
@&a l Jnc