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Parbery v QNI Metals Pty Ltd (No 7)

 

[2018] QSC 180

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BOND J

SC No 6593 of 2017

STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ)
ACN 009 842 068

First Plaintiffs

QUEENSLAND NICKEL PTY LTD (IN LIQ) ACN 009 842 068

Second Plaintiff

JOHN RICHARD PARK, KELLY-ANNE LAVINA TRENFIELD & QUENTIN JAMES OLDE AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQUIDATION)
ACN 009 842 068

Third Plaintiffs

QNI METALS PTY LTD

ACN 066 656 175

First Defendant

QNI RESOURCES PTY LTD

ACN 054 117 921

Second Defendant

QUEENSLAND NICKEL SALES PTY LTD

ACN 009 872 566

Third Defendant

CLIVE FREDERICK PALMER

Fourth Defendant

CLIVE THEODORE MENSINK

Fifth Defendant

IAN MAURICE FERGUSON

Sixth Defendant

MINERALOGY PTY LTD

ACN 010 582 680

Seventh Defendant

PALMER LEISURE AUSTRALIA PTY LTD

ACN 152 386 617

Eighth Defendant

PALMER LEISURE COOLUM PTY LTD

ACN 146 828 122

Ninth Defendant

FAIRWAY COAL PTY LTD

ACN 127 220 642

Tenth Defendant

CART PROVIDER PTY LTD

ACN 119 455 837

Eleventh Defendant

COEUR DE LION INVESTMENTS PTY LTD

ACN 006 334 872

Twelfth Defendant

COEUR DE LION HOLDINGS PTY LTD

ACN 003 209 934

Thirteenth Defendant

CLOSERIDGE PTY LTD

ACN 010 560 157

Fourteenth Defendant

WARATAH COAL PTY LTD

ACN 114 165 669

Fifteenth Defendant

CHINA FIRST PTY LTD

ACN 135 588 411

Sixteenth Defendant

cold mountain stud pty ltd

acn 119 455 248

Seventeenth Defendant

evgenia Bednova

Eighteenth Defendant

alexandar gueorguiev sokolov

Nineteenth Defendant

Zhenghong zhang

Twentieth Defendant

sci le coeur de l’ocean

Twenty-first Defendant

DOMENIC MARTINO

Twenty-second Defendant

MARCUS WILLIAM AYRES

First Defendant added by counterclaim

STEFAN DOPKING

Second Defendant added by counterclaim

BRISBANE

FRIDAY, 3 AUGUST 2018

JUDGMENT

BOND J:    HIS HONOUR:   By court document 296, the plaintiffs applied for orders as follows:

The categories of documents, document plan, and document management protocol appearing at pages 20 to 63 of Exhibit LTH-2 to the affidavit of Liam Thomas Hennessy affirmed on 6 July 2018, be the categories of documents, document plan, and document management protocol for the consolidated proceeding.

The application so made was consequent upon orders that I made on 19 April 2018.  The orders I made on that date provided the following in relation to disclosure:

Item

Date

Step or direction

Party responsible

 

Disclosure

5

By 4:00pm on 25 May 2018

The QN parties must provide the defendants with:

  1. a proposed list of categories of documents that they are seeking disclosure of from each of the defendants and by which they propose to disclose documents to the defendants;
  2. a proposed document plan to address the management of documents at all stages in the proceeding; and
  3. a proposed document management protocol which ensures that litigants describe and exchange documents consistently to improve searchability and retrieval and to minimize information management which includes potential technology assisted review (TAR) protocols.

QN Parties

6

By 4:00pm on 22 June 2018

The defendants must:

  1. provide comments on the list of categories of documents proposed by the QN parties, defendants and propose any additional categories;
  2. provide comments on the document plan to address the management of documents at all stages in the proceeding; and
  3. provide comments on the document management protocol.

The defendants

7

By 4:00pm on 29 June 2018

The parties are to meet to agree on:

  1. the list of categories of documents to be disclosed;
  2. the document plan; and
  3. the document management protocol,

and, in the event that agreement is reached, the parties will sufficiently comply with their duty of disclosure in this proceeding by making disclosure in compliance with the agreement and any subsequent directions made by the Court.

All parties

8

By 4:00pm on 6 July 2018

The parties must either –

  1. notify the court of the terms of a proposed consent order recording the terms of their agreement reached consequent upon compliance with direction [7] and providing that the parties will sufficiently comply with their duty of disclosure in this proceeding by making disclosure in compliance with those terms; or
  2. file an application seeking orders in respect of the disputed aspects of the categories of documents, document plan or document management protocol.

All parties

The application first came on for hearing last Friday.  I addressed what occurred in my ruling dated 27 July 2018.  Reference should be made to my oral reasons for that ruling.  As I there explained, the defendants had not complied with the orders I made on 19 April 2018.  I said in that ruling that there was much to be said for the submission advanced for the plaintiffs that I should simply make the order that they sought, together with the costs order that they sought.  Mr Palmer, then appearing for himself, expressed the submissions to which I have adverted in my reasons for the ruling on 27 July 2018.  He sought an adjournment so that he might direct a properly informed mind to the considerations which were addressed by the plaintiffs’ application.  I should say that this occurred after exchanges between me and counsel, where I expressed concern that I had not been given any real assistance in grappling with whether the directions sought by the plaintiffs were appropriate or could be improved or should be changed.  In any event, I acceded to the application by Mr Palmer for adjournment.  That application was joined in by the other defendants.

All the defendants are now represented by counsel.  Counsel had yesterday provided submissions which grappled with one aspect of the proposed orders, by suggesting that further categories ought be appropriate.  That submission was contained in written submissions, which were provided to me, in support of a stay application.  However, shortly before the matter was called on this morning, those submissions were altered by the redaction of submissions which grappled with the disclosure application.  When the application was mentioned this afternoon, as I have said, all the defendants who are active in the proceeding are now represented by the same counsel, and counsel indicated that he had instructions not to advance any submissions in relation to the application, and was neither to oppose nor to consent to the orders sought by the plaintiffs.  He did seek to rely on an affidavit by his instructing solicitor.  My permitting him to do that was opposed by counsel for the plaintiffs on the grounds that as the person seeking to adduce evidence had already clarified they had no submissions to make, they would not be permitted to adduce any evidence. 

Inter partes litigation does not involve the court guessing at what ought be appropriate.  I regard to be utterly extraordinary the conduct of parties who having obtained an adjournment so that something could be dealt with today with their input as to the appropriateness of the orders, decide, having got the adjournment, not to do anything at all, not to make any submissions at all, but just to seek to put some material before me that I can make of what I will.  That is not the appropriate course.  If those parties do not seek to put any proposition before me as to why the orders should or should not be made, or any proposition before me in relation to the evidence that they propose I receive, I see no reason to receive the evidence.  I will not receive the evidence contained in the affidavit of Mr Iskander, which is court document 330, on the application advanced by the plaintiffs.

...

HIS HONOUR:   In relation to the application filed 6 July 2018, court document 296, I order: 

  1. (a)
    the parties are to conduct disclosure in accordance with the disclosure plan and the list of categories for disclosure contained therein, and the document management protocol contained at pages 20 to 63 of exhibit LTH-2 to the affidavit of Mr Liam Thomas Hennessy, which is court document 297;  and
  1. (b)
    the defendants are to pay the first and second plaintiffs’ costs of the application.
Close

Editorial Notes

  • Published Case Name:

    Parbery v QNI Metals Pty Ltd

  • Shortened Case Name:

    Parbery v QNI Metals Pty Ltd (No 7)

  • MNC:

    [2018] QSC 180

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    03 Aug 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 107 25 May 2018 Upon undertakings made by the Commonwealth, and the special purpose liquidators, freezing orders made with respect to the first, second, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth and fifteenth defendants: Bond J.
Primary Judgment [2018] QSC 125 25 May 2018 Application to stay orders made in [2018] QSC 107 for 21 days dismissed, save for orders 16 and 17 which are stayed until further order: Bond J.
Primary Judgment [2018] QSC 141 11 Jun 2018 Stay of operation of orders 16 and 17 ordered 25 May 2018 discharged; order 16 set aside and in lieu thereof order that each defendant must swear an affidavit setting out their assets and details about those assets: Bond J.
Primary Judgment [2018] QSC 176 27 Jul 2018 Defendants' agitation that nothing should be determined until a proposed recusal application heard and determined rejected: Bond J.
Primary Judgment [2018] QSC 177 27 Jul 2018 Plaintiffs' application for disclosure adjourned to 3 August 2018: Bond J.
Primary Judgment [2018] QSC 178 03 Aug 2018 Defendants' application for a stay of orders dismissed: Bond J.
Primary Judgment [2018] QSC 180 03 Aug 2018 Plaintiffs' application for disclosure granted: Bond J.
Primary Judgment [2018] QSC 213 17 Sep 2018 Application that Bond J recuse himself granted; proceedings transferred to Jackson J and other ancillary orders: Bond J.
Primary Judgment [2018] QSC 240 22 Oct 2018 Defendants' application (except the fourth, twentieth and twenty-first defendants) for leave to proceed with the counterclaim dismissed (except counterclaim not struck through); plaintiffs' application for defence and counterclaim to be struck out granted with leave; defendants' application for strike-out of the consolidated statement of claim allowed in part; hearing adjourned to a date to be fixed; costs reserved: Jackson J.
Primary Judgment [2018] QSC 245 26 Oct 2018 Defendants' applications for recusal of Jackson J filed 19 October 2018 commence instanter; applications for recusal of Jackson J be adjourned to 1 November 2018 and ancillary directions: Jackson J.
Primary Judgment [2018] QSC 249 05 Nov 2018 Application that Jackson J recuse himself from hearing the trial of the proceeding granted on the ground of apprehended bias (dismissed on the ground of actual bias); application that Jackson J recuse himself from taking any further part in the proceeding, including any interlocutory applications, dismissed: Jackson J.
QCA Interlocutory Judgment [2018] QCA 139 26 Jun 2018 Fourth defendant's application to stay orders made in [2018] QSC 107 allowed in part and otherwise dismissed: Gotterson JA.
QCA Interlocutory Judgment [2018] QCA 287 23 Oct 2018 Application for a stay of the orders made by Bond J in [2018] QSC 180 dismissed: Philippides JA.
Appeal Determined (QCA) [2018] QCA 302 05 Nov 2018 Appeals from [2018] QSC 178 and [2018] QSC 213 dismissed with costs: Fraser and Gotterson JJA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)