WMJ Attractions Pty Ltd v. Ireland Group Pty Ltd
[2008] QSC 251
•6 October 2008
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
FRYBERG J
2008 QSC 251
No 7290 of 2006
| WMJ ATTRACTIONS PTY LTD (ACN 104 760 232) | Applicant |
| and | |
| IRELAND GROUP PTY LTD (ACN 073 392 600) | Respondent |
BRISBANE
..DATE 06/10/2008
ORDER
HIS HONOUR: This is an application by the plaintiff to have the trial dates allotted in this matter, 15th to the 17th of October, vacated. Those dates are a little over a week from now.
The proceedings were commenced by originating application in August 2006. Subsequently they were ordered to be dealt with through pleadings and pleadings were delivered.
As originally constituted, the plaintiff sued three defendants. Early this year the defendants applied for summary judgment against the plaintiff. Two of the three defendants were successful. The third was not.
In July this year Daubney J made orders for the further advancement of the proceedings. He gave the plaintiff leave to deliver an amended statement of claim as against the third defendant, the only remaining defendant. That was done.
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HIS HONOUR: The third defendant was ordered to file and serve its defence and any counter-claim by 4th of August. His Honour had been told that there was a possible counter-claim. Unfortunately, he was not told that the possible counter-claim was against not only the existing plaintiff but against three other persons who were not parties. He was not told that despite the fact that the solicitors for the third defendant were aware of that fact at the time. He made further orders regarding a reply and answer and regarding disclosure and regarding expert reports. It seems that the disclosure has occurred but there has been no compliance with his orders regarding expert reports. The defence and counter-claim as delivered in early August was unsigned. However, it purported to add counter-claims against three other parties. A signed version was filed in early September.
It ought to have been plain to everyone concerned that the chances of the matter being ready for trial in mid-October were remote indeed with three new parties added. Unsurprisingly, the parties have now realised that it is impossible.
The plaintiff has applied for the vacation of the trial dates. Why it is the plaintiff making this application, I have not had explained to me. One would have thought the plaintiff would have been anxious to have its trial heard. The interests of the plaintiff, one might have thought, would have been best served by having the trial come on. I suggested that that could still be achieved by separating the counter-claim from the claim but the plaintiff opposed that course. The solicitors for the plaintiff are acting for one of the defendants by counter-claim. I trust that there is no conflict of interest involved in the decision on the part of the plaintiff not to press for the earliest available date.
There is no explanation for the defendant's failure to notify the Court of what had occurred and of the unlikelihood of the matter being able to proceed.
Why the added parties have not made any application is unknown but, there again, it is unclear when they found out that the matter was listed for trial next week.
The Courts exist to render services to the public. This sort of conduct by solicitors is counter-productive in the Court's aim of providing those services. Days are wasted. They are days which could be used for other parties' litigation if timely notification were given when a matter was unable to go on. The solicitors for the third defendant in particular seem to have completely ignored that fact. The most that Mr Scott could say on their behalf was simply that their time was preoccupied with providing particulars.
Unfortunately, it seems to me that there is no alternative to making the order which is sought. It would plainly be unfair to the added parties, at least, if the matter were to proceed without being split, and I cannot see how I can split it if that course is opposed by the plaintiff.
I will, therefore, order in accordance with paragraph 1 of the application.
I further order that the case be placed on the supervised case list.
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HIS HONOUR: The order will be:
Order as per paragraph 1 of application.
Order that the case be placed on the supervised case list.
Order that no costs in respect of today's application be recoverable by solicitors for the plaintiff or the third defendant.
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