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Robson v Robson

Robson v Robson

Case [2010] QSC 378 7 October 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Robson & Ors v Robson [2010] QSC 378

PARTIES:

In BS 7342/2000:
HANNOVER INTERNATIONAL LIMITED
(Plaintiff)
v
CHARLES WILLIAM ROBSON

(Defendant)

AND

In BS 8937/2000:
MINE & QUARRY EQUIPMENT INTERNATIONAL LTD (ARBN 079 139 683)
(Plaintiff)
v
CHARLES WILLIAM ROBSON

(Defendant)

AND

In BS 10177/2004:
GARY FRANCIS ROBSON
(Plaintiff)
v
CHARLES WILLIAM ROBSON
(First Defendant)
and
SANDRA LEIGH ROBSON

(Second Defendant)

FILE NOS:

BS 7342/2000, BS 8937/2000, BS 10177/2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGE:

McMurdo J

ORDER:

The application for a stay of proceedings number 10177 of 2004 is dismissed.1.

The application for security for costs in each proceedings is refused.2.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the trial commenced in February 2010 but had to be adjourned after six days of hearing because the plaintiff had failed to make proper disclosure – where the plaintiff was ordered to make that disclosure by April and after doing so the defendants complained that the disclosure was still inadequate – where the defendants were directed to make any application for further disclosure and those applications were given a full day for hearing in June, in which the defendants were partly successful – where the trial is due to recommence in December – whether the proceedings should now be stayed upon the basis that the plaintiff has still failed to make propose disclosure and that this default will deprive the defendants of a fair trial.

PROCEDURE – COSTS – SECURITY FOR COSTS – RESIDENCE OUT OF JURISDICTION – GENERALLY – where the plaintiff regularly lives both in Australia and outside Australia – where in September 2007 the defendants unsuccessfully applied for security for costs against the plaintiff – where the trial is part heard and due to recommence in December 2010 – whether the plaintiff should be ordered to give security for costs on the basis that he is ordinarily resident outside Australia.

Bankruptcy Act 1966 (Cth)

Uniform Civil Procedure Rules 1999 (Qld) r 671(e), 672

R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Corbett v Nguyen [2008] NSWSC 1265
Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245
Devaynes v Noble;Clayton’s Case (1816) 1 MER 572
Inland Revenue Commissioners v Lysaght [1928] AC 234
Levene v Inland Revenue Commissioners [1928] AC 217
Leyvand v Barasch (2000) 144 SJLB 126
Logue v Hansen Technologies Ltd & Anor (2003) 125 FCR 590
Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 274
Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194
Robson v Robson & Anor [2008] QCA 36

Stack & Anor v Brisbane City Council & Ors (1996) 71 FCR 523

COUNSEL:

D de Jersey for the plaintiffs

A Morris QC and J W Peden for the defendants

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 Robson v Robson

Details

AGLC: Robson v Robson [2010] QSC 378
Case: [2010] QSC 378
Decision Date: 7 October 2010

CaseChat Overview and Summary

The matter in question, Robson v Robson, arose from a trial that had already commenced in February 2010 but was adjourned after six days because the plaintiff had failed to make proper disclosure. Following this, the plaintiff was ordered to complete the disclosure by April. However, upon the plaintiff's completion of the disclosure, the defendants argued that it was still inadequate. The defendants were then directed to make any application for further disclosure, which was subsequently heard in June. In this hearing, the defendants were partly successful. The trial was scheduled to recommence in December, but the defendants applied for the proceedings to be stayed, arguing that the plaintiff's failure to make proper disclosure would deprive them of a fair trial.

The primary legal issues before the court were whether the proceedings should be stayed due to the plaintiff's ongoing failure to make proper disclosure, and whether the plaintiff should be ordered to give security for costs given his residence both in Australia and outside the jurisdiction. The court had to balance the need for fair trial against the potential prejudice caused by the plaintiff's failure to make proper disclosure, as well as consider the plaintiff's residency status in relation to the security for costs application.

In dismissing the application for a stay of proceedings, the court found that while the plaintiff's failure to make proper disclosure was a serious issue, it did not warrant a stay of proceedings at that stage. The court noted that the defendants had already been partly successful in their application for further disclosure, and the trial was due to recommence in December. The court considered that a stay of proceedings would not be in the interests of justice given the limited prejudice to the defendants and the potential for the trial to proceed with an adequate disclosure. Regarding the security for costs, the court refused the application on the basis that the plaintiff's regular residence in Australia was sufficient to satisfy the requirements for security for costs.

The court's final orders were that the application for a stay of proceedings was dismissed, and the application for security for costs was refused in each proceeding.

Orders

Orders of the court

The application for a stay of proceedings number 10177 of 2004 is dismissed.1.

The application for security for costs in each proceedings is refused.2.

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.

Citations

AGLC Citation

Robson v Robson [2010] QSC 378

Most Recent Citation

Robson v Robson [2010] QCA 330

Cases citing this decision · 3 of 3 shown

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd
[2018] QSC 53 Para 33

…Robson [19] where, in the circumstances then applying, McMurdo J (as he then was) refused a “top up” application for security for costs. [19] [2010] QSC 378.…
Byrne v Hamilton
[2017] NSWDC 334 Para 41

…The relevant passage from Leyvand v Barash (unreported, Chancery Division, 15 February 2000, Lightman J) is set out by McMurdo J in Robson v Robson [2010] QSC 378 at [35]:…
Robson v Robson
[2010] QCA 330

…R 499; [1936] HCA 40, cited Mango Boulevard P/L v Spencer & Ors [2008] QCA 274, applied Robson & Ors v Robson [2010] QSC 378, related Robson v Robson & Anor [2008] QCA 36, related Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, cited Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, cit…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Corbett v Nguyen
[2008] NSWSC 1265 Para 1

…against him or her, even though there is jurisdiction to do so on the basis that the person is also ordinarily resident outside Australia.[16] [15][2008] NSWSC 1265 at [27], see also Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 at [25]. [16][2008] NSWSC 1265 at [11].…
Mango Boulevard Pty Ltd v Spencer
[2008] QCA 274 Para 1

…mentary disclosure made to them no less than five months prior to this application being heard. [3] Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 274 at [28] per Muir JA.…
Corby v Channel Seven Sydney Pty Ltd
[2008] NSWSC 245 Para 1

…sis that the person is also ordinarily resident outside Australia.[16] [15][2008] NSWSC 1265 at [27], see also Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 at [25]. [16][2008] NSWSC 1265 at [11].…
Robson v Robson
[2008] QCA 36 Para 1

…alia. And in the proceedings brought by the corporate plaintiffs, there are applications for (further) security for costs. [1] Robson v Robson & Anor [2008] QCA 36.…
Logue v Hansen Technologies Ltd
[2003] FCA 81

…v Lysaght [1928] AC 234 Levene v Inland Revenue Commissioners [1928] AC 217 Leyvand v Barasch (2000) 144 SJLB 126 Logue v Hansen Technologies Ltd & Anor (2003) 125 FCR 590 Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 274 Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 Robson v Robson & Anor [2008] QCA 36 Stack & Anor…
Stack v Brisbane City Council
[1996] FCA 1114 Para 1

…t it will not also have to contribute funds as security for the defendant’s costs or otherwise make financial arrangements to that effect.[21] [21] Stack & Anor v Brisbane City Council & Ors (1996) 71 FCR 523 at 531.…
Vasyli v AOL International Pty Ltd
[1996] FCA 804 Para 1

…as security for the defendant’s costs or otherwise make financial arrangements to that effect.[21] [21] Stack & Anor v Brisbane City Council & Ors (1996) 71 FCR 523 at 531.…
Re Taylor, K.D
[1992] FCA 439 Para 1

…iscussing the meaning of “ordinarily resident in Australia” within s 43(1)(b)(i) of the Bankruptcy Act 1966 (Cth), Lockhart J said:[6] [4](1992) 37 FCR 194. [5]Ibid at 197. [6](1992) 37 FCR 194 at 198.…
[1983] 2 AC 309
[1983] 2 AC 309 Para 1

…rdinary residences, one within and one outside the jurisdiction. Weinberg J said:[13] [8](2003) 125 FCR 590. [9][1928] AC 217. [10][1928] AC 234. [11][1983] 2 AC 309. [12](2003) 125 FCR 590 at 598. [13]Ibid.…
[1928] AC 234
[1928] AC 234 Para 1

…a person had two ordinary residences, one within and one outside the jurisdiction. Weinberg J said:[13] [8](2003) 125 FCR 590. [9][1928] AC 217. [10][1928] AC 234. [11][1983] 2 AC 309. [12](2003) 125 FCR 590 at 598. [13]Ibid.…
[1928] AC 217
[1928] AC 217 Para 1

…circumstance where a person had two ordinary residences, one within and one outside the jurisdiction. Weinberg J said:[13] [8](2003) 125 FCR 590. [9][1928] AC 217. [10][1928] AC 234. [11][1983] 2 AC 309. [12](2003) 125 FCR 590 at 598. [13]Ibid.…
[1946] SCR 209
[1946] SCR 209

…its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.…

Legislation cited in this decision · 3

Uniform Civil Procedure Rules 1999 (Qld)
671(e), 672 3 mentions (from Para 1)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 1)
Corporations Act 2001 (Cth)
1 mention (from Para 1)

CITATION:	Robson & Ors v Robson [2010] QSC 378
PARTIES:	In BS 7342/2000: HANNOVER INTERNATIONAL LIMITED (Plaintiff) v CHARLES WILLIAM ROBSON (Defendant) AND In BS 8937/2000: MINE & QUARRY EQUIPMENT INTERNATIONAL LTD (ARBN 079 139 683) (Plaintiff) v CHARLES WILLIAM ROBSON (Defendant) AND In BS 10177/2004: GARY FRANCIS ROBSON (Plaintiff) v CHARLES WILLIAM ROBSON (First Defendant) and SANDRA LEIGH ROBSON (Second Defendant)
FILE NOS:	BS 7342/2000, BS 8937/2000, BS 10177/2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2010
JUDGE:	McMurdo J
ORDER:	The application for a stay of proceedings number 10177 of 2004 is dismissed.1. The application for security for costs in each proceedings is refused.2.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the trial commenced in February 2010 but had to be adjourned after six days of hearing because the plaintiff had failed to make proper disclosure – where the plaintiff was ordered to make that disclosure by April and after doing so the defendants complained that the disclosure was still inadequate – where the defendants were directed to make any application for further disclosure and those applications were given a full day for hearing in June, in which the defendants were partly successful – where the trial is due to recommence in December – whether the proceedings should now be stayed upon the basis that the plaintiff has still failed to make propose disclosure and that this default will deprive the defendants of a fair trial. PROCEDURE – COSTS – SECURITY FOR COSTS – RESIDENCE OUT OF JURISDICTION – GENERALLY – where the plaintiff regularly lives both in Australia and outside Australia – where in September 2007 the defendants unsuccessfully applied for security for costs against the plaintiff – where the trial is part heard and due to recommence in December 2010 – whether the plaintiff should be ordered to give security for costs on the basis that he is ordinarily resident outside Australia. Bankruptcy Act 1966 (Cth) Uniform Civil Procedure Rules 1999 (Qld) r 671(e), 672 R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 Corbett v Nguyen [2008] NSWSC 1265 Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 Devaynes v Noble;Clayton’s Case (1816) 1 MER 572 Inland Revenue Commissioners v Lysaght [1928] AC 234 Levene v Inland Revenue Commissioners [1928] AC 217 Leyvand v Barasch (2000) 144 SJLB 126 Logue v Hansen Technologies Ltd & Anor (2003) 125 FCR 590 Mango Boulevard Pty Ltd v Spencer & Ors [2008] QCA 274 Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 Robson v Robson & Anor [2008] QCA 36 Stack & Anor v Brisbane City Council & Ors (1996) 71 FCR 523
COUNSEL:	D de Jersey for the plaintiffs A Morris QC and J W Peden for the defendants