Shereston & Anor v Parteck Consulting Services

[2013] QDC 46

[2013] QDC 46

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 99 of 2012

PAUL SHERESTON and ALANA SHERESTON	Plaintiffs
and
PARTECK CONSULTING SERVICES and OTHERS	Defendants

BRISBANE

..DATE 25/02/2013

ORDER

CATCHWORDS

Plaintiff contested application to place matter on commercial list - building dispute considered appropriate to be so listed by the court - - one or  more defendants concerned a listing would transfer the proceeding to Brisbane- Court undertaking case management, but declines listing as the timetable agreed by the parties will not allow for fixing trail date within the year - venue left for courts determination.  

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It indulges the reservations the defendants had about the matter being placed on the commercial list by deferring that aspect of the plaintiffs' application for later consideration.

It emerges that there is a general thought in the defendants' camps that the matter is not of a kind that merits inclusion in the list.  I respectfully disagree with that.  One submission made was that commercial aspects arose peripherally only that the real issues are likely to involve expert evidence about the responsibility, if any, of the defendants who are soil testing experts, engineers and a builder respectively for a situation very distressing to the plaintiff home builders whose new residence is in the process of collapsing around them because of landslip.

This scenario seems to me to generate sympathy for the plaintiffs who, on the face of things, might bear lest responsibility, but who for the moment face financial consequences, and an inclusion to see it to go on to the commercial list.

In my view, my reason for not placing it there today is that the parties as a cooperative exercise have devised a timetable to accommodate the engagement of experts who are to cooperate with each other in familiar ways, to and hold a mediation.  Such steps will virtually take up the whole remainder of the court year.
Paragraph 14 of the order, I am making stipulates that if mediation is unsuccessful the parties will execute and file a request for a trial date by 6th of December 2013.  So, they're now looking for a trial next year.  That is on the basis of the timetable originally proposed by the plaintiffs/applicants in their filed application.

I'd made arrangement with the Chief Judge to offer various possibilities for a trial this year, the earliest commencing on the 19th of August.

In my view, if no trial dates to be worked towards are set, it's inappropriate to place the matter on the commercial list in the usual event.  A further reason for resistance to the matter being placed on the commercial list was the apprehension of, at least, some of the defendants that that would involve transferring the proceeding from Maroochydore to Brisbane, which may not necessarily be suitable to all parties.

I've made provision in the order indicating that a determination of the appropriate trial venue, which concerns convenience to the court as well as that of the parties, be deferred.  If Maroochydore is to be the venue that may have implications for the court's 2014 calendar if an additional Judge has to be supplied to Maroochydore to conduct the trial.  That won't necessarily occur.

The parties indicated no objection to the matter being managed by the court.  That will occur.  The order contains specific provisions that if interlocutory matters are to be raised before me that may be done informally without the filing of any formal application.  I'm not at all suggesting that further interlocutory matters should be dealt with by me or in Brisbane.

The last thing that I would record is that after consultation with the Chief Judge last week I obtained her approval to offer the services of Mr Taylor, the ADR Registrar usually active in the Planning and Environment Court, to conduct a mediation.  That was with a view to saving the parties costs but Mr Ensbey, who represented the plaintiffs, has indicated a preference which, I take it, the parties share, to retain flexibility in this aspect against the possibility that a mediator from the private Bar with appropriate expertise might be engaged by them.

Order as per the initialled draft.

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