Quinlan v ERM Power Limited - [2023] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

Quinlan v ERM Power Limited & Ors [2023] QSC 80

PARTIES:

KENT MATTHEW QUINLAN

(plaintiff)

v
ERM POWER LIMITED ACN 122 259 223

(first defendant)
and
EMPIRE OIL & GAS NL ACN 063 613 730
(second defendant)
and
PHILIP MATTHEW ST BAKER
(third defendant)
and
TREVOR MATTHEW ST BAKER
(fourth defendant)
and
ANTHONY GEORGE BELLAS
(fifth defendant)
and
ANTONIO MARIO IANNELLO
(sixth defendant)
and
MARTIN ROGER GREENBERG
(seventh defendant)
and
JAMES BRETT LOCHRAN HEADING
(eighth defendant)
and
JONATHAN HUGH STRETCH
(ninth defendant)
and
JULIANNE MARGARET ALROE
(tenth defendant)
and
ALBERT GOLLER
(eleventh defendant)
and
GEORGANNE MARIE HODGES
(twelfth defendant)
and
PHILIP ANDREW DAVIS
(thirteenth defendant)

FILE NO/S:

BS 6601 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2023

JUDGE:

Brown J

ORDER:

Order as per draft.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULAR PLEADINGS – DEFENCE – where the natural defendants applied to be relieved from compliance with pleading rules under the Uniform Civil Procedure Rules 1999 (Qld) on the basis of claims to privilege against self-incrimination and privilege against exposure to a penalty as a result of matters pleaded by the plaintiff – whether there was a real and appreciable risk of criminal prosecution or exposure to civil penalties – whether the natural defendants held such an apprehension on bona-fide or reasonable grounds

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – TENDENCY TO INCRIMINATE AND EXPOSURE TO PENALTY – where the natural defendants applied to be relieved from compliance with disclosure obligations under Ch 7 of the Uniform Civil Procedure Rules 1999 (Qld) on the basis of claims to privilege against self-incrimination and privilege against exposure to a penalty – whether disclosure of documents or a list of documents would expose the natural defendants to a risk of incrimination or civil penalty proceedings or set a prosecution authority or a regulator on a train of inquiry

Crimes Act 1914 (Cth) s 15B(1)
Criminal Code Act 1995 (Cth) s 11.2
Corporations Act 2001 (Cth) ss 79, 180–183, 1041A, 1041C, 1043A, 1316, 1317AAE, 1317AC, 1317E, 1317G
Uniform Civil Procedure Rules 1999 (Qld), rr 149(1)(b), 149(1)(c), 150, 157, 165, 166, Ch 7

Anderson v Australian Securities and Investments Commission [2013] 2 Qd R 401, considered
Browne v Dunn (1893) 6 R 67, cited
Chardon v Bradley [2017] QCA 314, cited
Connelly and Harris v McGrath (2019) 3 QR 99, considered
EL Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 4 ACSR 85, considered
LM Investment Management Limited (in liq) v EY (No 5) [2020] QSC 264, cited
Oates v Williams (1998) 84 FCR 348, cited
QC Resource Investments Pty Ltd (In Liq) v Mulligan [2016] FCA 813, cited
Re Australian Property Custodian Holdings Ltd (in…

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.

Continue reading Quinlan v ERM Power Limited

Details

AGLC: Quinlan v ERM Power Limited [2023] QSC 80
Case: [2023] QSC 80
Decision Date: 20 April 2023

CaseChat Overview and Summary

Quinlan v ERM Power Limited involved the natural defendants seeking exemption from certain pleading and disclosure obligations under the Uniform Civil Procedure Rules 1999 (Qld) on the grounds of privilege against self-incrimination and exposure to a penalty. The defendants argued that compliance with the rules might lead to criminal prosecution or civil penalties. The case was heard in a state court, which had to determine whether the defendants' apprehension was real and appreciable and whether it was held on bona fide or reasonable grounds.

The legal issues before the court were primarily whether the natural defendants were entitled to relief from the pleading and disclosure obligations, and if so, to what extent. This involved assessing the nature and substance of the defendants' claims of privilege, particularly whether there was a genuine risk of incrimination or penalty that would justify the exemption. The court had to weigh the defendants' rights to avoid self-incrimination and potential penalties against the plaintiff's right to a fair trial and access to necessary evidence.

The court found that the natural defendants' claims of privilege were not substantiated as they did not demonstrate a real and appreciable risk of criminal prosecution or exposure to a civil penalty. The apprehension of such risks was not held on bona fide or reasonable grounds. Consequently, the defendants were not entitled to relief from the pleading and disclosure obligations. The court concluded that the defendants' claims were speculative and not grounded in a real apprehension of risk, and thus, the defendants were required to comply with the procedural rules.

The final orders of the court mandated that the natural defendants comply with the pleading and disclosure obligations under the Uniform Civil Procedure Rules 1999 (Qld). This included providing particulars of their claims and producing the relevant documents as required. The court's decision underscored the importance of balancing the protection of individual rights against the broader need for procedural fairness and the efficient administration of justice.

Orders

Orders of the court

Order as per draft.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Quinlan v ERM Power Limited & Ors [2023] QSC 80
PARTIES:	KENT MATTHEW QUINLAN (plaintiff) v ERM POWER LIMITED ACN 122 259 223 (first defendant) and EMPIRE OIL & GAS NL ACN 063 613 730 (second defendant) and PHILIP MATTHEW ST BAKER (third defendant) and TREVOR MATTHEW ST BAKER (fourth defendant) and ANTHONY GEORGE BELLAS (fifth defendant) and ANTONIO MARIO IANNELLO (sixth defendant) and MARTIN ROGER GREENBERG (seventh defendant) and JAMES BRETT LOCHRAN HEADING (eighth defendant) and JONATHAN HUGH STRETCH (ninth defendant) and JULIANNE MARGARET ALROE (tenth defendant) and ALBERT GOLLER (eleventh defendant) and GEORGANNE MARIE HODGES (twelfth defendant) and PHILIP ANDREW DAVIS (thirteenth defendant)
FILE NO/S:	BS 6601 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	20 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	27 February 2023
JUDGE:	Brown J
ORDER:	Order as per draft.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULAR PLEADINGS – DEFENCE – where the natural defendants applied to be relieved from compliance with pleading rules under the Uniform Civil Procedure Rules 1999 (Qld) on the basis of claims to privilege against self-incrimination and privilege against exposure to a penalty as a result of matters pleaded by the plaintiff – whether there was a real and appreciable risk of criminal prosecution or exposure to civil penalties – whether the natural defendants held such an apprehension on bona-fide or reasonable grounds PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – GROUNDS FOR RESISTING PRODUCTION – PRIVILEGE – TENDENCY TO INCRIMINATE AND EXPOSURE TO PENALTY – where the natural defendants applied to be relieved from compliance with disclosure obligations under Ch 7 of the Uniform Civil Procedure Rules 1999 (Qld) on the basis of claims to privilege against self-incrimination and privilege against exposure to a penalty – whether disclosure of documents or a list of documents would expose the natural defendants to a risk of incrimination or civil penalty proceedings or set a prosecution authority or a regulator on a train of inquiry Crimes Act 1914 (Cth) s 15B(1) Criminal Code Act 1995 (Cth) s 11.2 Corporations Act 2001 (Cth) ss 79, 180–183, 1041A, 1041C, 1043A, 1316, 1317AAE, 1317AC, 1317E, 1317G Uniform Civil Procedure Rules 1999 (Qld), rr 149(1)(b), 149(1)(c), 150, 157, 165, 166, Ch 7 Anderson v Australian Securities and Investments Commission [2013] 2 Qd R 401, considered Browne v Dunn (1893) 6 R 67, cited Chardon v Bradley [2017] QCA 314, cited Connelly and Harris v McGrath (2019) 3 QR 99, considered EL Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 4 ACSR 85, considered LM Investment Management Limited (in liq) v EY (No 5) [2020] QSC 264, cited Oates v Williams (1998) 84 FCR 348, cited QC Resource Investments Pty Ltd (In Liq) v Mulligan [2016] FCA 813, cited Re Australian Property Custodian Holdings Ltd (in…