Thomas Borthwick & Sons (Australia) Pty Ltd v Osborne

[1999] QCA 107

99.107

COURT OF APPEAL

de JERSEY CJ McPHERSON JA FRYBERG J

Appeal No 6746 of 1998

THOMAS BORTHWICK & SONS

(AUSTRALIA) PTY LTD	Appellant (Defendant)
and
EUNICE MARGARET OSBORNE	Respondent (Plaintiff)

BRISBANE
..DATE 07/04/99
THE CHIEF JUSTICE: This appeal is brought against
an order under Order 35 Rule 21 of the Rules of
the Supreme Court granting the plaintiff leave to
deliver interrogatories for the examination of the
defendant.
The order was made by a learned Chamber Judge on
14 July 1998. The appellant's appeal having been
instituted, the interrogatories were not answered
and following preliminary intimations towards the
end of 1998, the plaintiff's solicitors notified
the appellant's solicitors on 19 February 1999
that the plaintiff no longer required the

appellant to answer the interrogatories.

The appeal was based on contentions that the
appellant should have been given the opportunity
to be heard before His Honour, picking up the
words of Order 35 Rule 21 paragraph 1 which
indicate that application without notice to any
other person might be made "subject to an order of

the Court or a Judge".

The second contention was that the learned Judge
should not have been satisfied that there was "not
likely to be available to the applicant at the
trial any other reasonably simple and inexpensive
way of proving the matter sought to be elicited by
interrogatory".
It is worth noting, as the Court of Appeal pointed
out in Suncorp General Insurance Limited v.
Ranger, No 4583 of 1998 in an unreported judgment
delivered on 17 August that year, that special
circumstances should be demonstrated before the
Court sanctions departure from that second limb of
Rule 21,

paragraph 1.

In any event, further ventilation of those
contentions is now academic. Mr Alldridge who
appeared for the appellant urged us nevertheless
to embark upon a determination on the merits
because as he suggested it would be helpful to
litigants in the relevant part of Queensland were
these points determined or perhaps on one view, in
light of Ranger's case, again confirmed by the

Court of Appeal.

It would however in my opinion be contrary to the
way this Court should proceed for us now to make
supposedly authoritative determinations or further
determinations on points which have become in

truth academic.

The only issue now remaining is the issue of costs
and in that regard, one has in mind Order 91 Rule
16 headed "Costs when further proceedings become
unnecessary" and the Full Court's approach in The
Queen v. The Gold Coast City Council ex parte
Raysun Pty Ltd (1971) QWN 13.
One should in these circumstances form some
judgment as to the prima facie reasonableness of
the appellant's appeal. I have reached the view
that it lacked any apparently reasonable basis. I
draw that from the way in which the primary Judge
was approached.

Counsel for the appellant did not seek to be heard before His Honour upon the hearing of an otherwise ex parte application on the basis for example that he might be able to demonstrate

that there were likely to be available to the
applicant at the trial other reasonably simple and
inexpensive ways of proving the matter sought to

be elicited by the draft interrogatories.

What counsel said was, "The defendant requests
that the matter be adjourned and that the papers
be served on the defendant so that the defendant
can consider the proposed interrogatories." Not
surprisingly, in view of the prima facie (at
least) expectation underlying Order 35 Rule 21
that these matters would proceed ex parte, His

Honour rejected that application.

The position of the appellant may have been much
more arguable had its counsel before His Honour
sought immediately to enter the fray and to make
helpful submissions on the question whether the
requirement of the second limb of Rule 21 sub-rule
1 was satisfied, but that course was not followed,
hence my conclusion that the appeal lacked a
reasonable basis.
The orders sought with relation to costs by Mr
Hack who appeared for the respondent were that the
appellant should pay the respondent's costs from
19 February 1999 when the plaintiff intimated her
disinclination to proceed further with requiring
answers to the interrogatories, and that prior to
that date, each party's costs be costs in the
proceedings. In my view, making orders in those
terms is the fair and appropriate way of disposing

of the issue of costs.

I would therefore dismiss the appeal, order that
up to
19 February 1999 each party's costs be costs in
the proceedings and that the appellant pay the
respondent's costs to be taxed from and after 19

February 1999.

McPHERSON JA: I agree.
FRYBERG J: I agree.

THE CHIEF JUSTICE: Those are the orders.

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