Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2016
  4. Hilchrist Pty Ltd v Visual Integrity Pty Ltd - [2016] QDC 310

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hilchrist Pty Ltd v Visual Integrity Pty Ltd[2016] QDC 310

Hilchrist Pty Ltd v Visual Integrity Pty Ltd[2016] QDC 310

DISTRICT COURT OF QUEENSLAND

CITATION:

Hilchrist Pty Ltd v Visual Integrity Pty Ltd & Ors [2016] QDC 310

PARTIES:

HILCHRIST PTY LTD

(plaintiff)

v

VISUAL INTEGRITY PTY LTD

(first defendant)

and

ANDREW BUTCHER

(second defendant)

and

ZOE CLARE BUTCHER

(third defendant)

and

EXCELLEX PTY LTD

(fourth defendant)

FILE NO/S:

BD2887/2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2016

JUDGE:

Chowdhury DCJ

ORDER:

  1. Application refused.
  2. No order made as to costs.
  3. Any application by the defendant for leave to serve interrogatories be filed by 4:00pm Friday 9 December 2016.

CATCHWORDS:

Request for trial date - Dispensing with signature on request for trial date

COUNSEL:

Mr D. de Jersey for the Plaintiff

Mr A. Nelson for the Defendants

SOLICITORS:

HWL Ebsworth for the Plaintiff

Alexander Law for the Defendant

  1. [1]
    By way of application filed in the registry on 15 November 2016, the plaintiff applies to the court for the following orders:
  1. Pursuant to rule 469 Uniform Civil Procedure Rules (“UCPR”), the signature of each of the defendants be dispensed with on the request for trial date exhibited at RMH-12 to the affidavit of Richard Mark Hamwood sworn in support of this application.
  1. The defendants pay the plaintiff’s costs of and incidental to this application.
  1. Such further or other orders this honourable court considers appropriate.
  1. [2]
    These orders are opposed by the defendants.

Background to the application

  1. [3]
    The plaintiff filed a claim in the Supreme Court of Queensland at Brisbane on 6 April 2016. On 18 July 2016 the defendants obtained orders for security for costs and further transfer of a claim to the District Court.
  1. [4]
    On 1 September 2016 His Honour Judge Butler SC granted the plaintiff leave to amend its claim. The amended claim and statement of claim were served on 7 September 2016. An amended defence of all the defendants was filed on 9 September 2016. The defendants filed a further amended defence on 27 September 2016. On 21 October 2016 an amended reply was filed in the registry by the plaintiff.
  1. [5]
    By letter dated 13 September 2016, the solicitors for the plaintiff enclosed a request for trial in accordance to rule 467 UCPR; that request for a trial notice is attached to the letter of 13 September 2016, which is Exhibit “RNH-1” to the affidavit of Richard Mark Hamwood, filed 16 November 2016. 
  1. [6]
    By letter of 15 September 2016, the defendants’ solicitor stated that as the pleadings have only just closed the matter is not yet ready for trial, and any request for a trial date is premature. Four reasons were set out in that letter why the defendants did not intend to sign the request.
  1. [7]
    By letter of 16 September 2016, the solicitors for the plaintiff in essence rejected their reasons for why the trial should not be set down, and indicated that:

“If the defendants maintained their opposition to signing and returning the request, an application will be made as foreshadowed and the costs of doing so will be sought against the defendants.  However, we would urge them to reconsider so that trial dates suitable to all parties can be obtained.”[1]

In that letter, the plaintiff indicated that “we had no idea” about what further interlocutory steps may be taken.  In a letter dated 19 September 2016, in essence the defendants indicated that they would advise of such interlocutory steps “in due course.” 

  1. [8]
    After further correspondence, by letter dated 21 October 2016 the plaintiff’s solicitors enclosed a further request for trial date, “which takes into account matters which have arisen since that served in September 2016”. This second request for trial date is the basis of the application before me. 
  1. [9]
    By way of email on 14 November 2016, the defendants’ solicitors attached a costs statement, for costs assessed pursuant to order dated 1 September 2016, and, importantly, a notice to admit facts, dated 14 November 2016.[2] 
  1. [10]
    The notice to admit facts is some eight pages long, and contains 64 paragraphs.
  1. [11]
    By letter dated 16 November 2016, the defendants’ solicitors stated that “no rule 444 matter has been sent by your client complaining of the defendants’ perceived failure to comply with the rules regarding the signing of a request for trial date.”  It was stated that the defendants had provided legitimate reasons for not signing both of the request for trial date forms.  The notice to admit facts was also raised and ultimately it was contended that the defendants were not ready for trial, and that the “the plaintiff’s application remains premature and it seems designed to be oppressive to the defendants.” 
  1. [12]
    By letter dated 18 November 2016, the solicitors for the plaintiff rejects the suggestion that any of the matters raised in the defendants’ letter of 16 November 2016 “provides any basis for contending that the plaintiff is not entitled to the orders sought in the application.”  It was also stated in that letter that the plaintiff did not admit the facts stated in the notice to omit facts. 

The relevant rules

  1. [13]
    Rule 467 states as follows:

(1)A party who is ready for trial may prepare and sign a request for trial date in the approved form.

(2)The party who prepared the request for trial date must serve copies of the request on each other party and, if the party served is ready for trial, that party must sign the request and return it to the party who prepared it.

(3)The party who prepared the request for trial date must file as soon as practicable a copy of the request signed by all parties, other than a party whose signature has been dispensed with by the court.

(4)For this rule, a party is ready for trial if—

(a)any order or requirement by notice under chapter 7, part 1 for the making of disclosure by or to the party or for the inspection of documents by or to the party has been complied with; and

(b)any order requiring particulars to be given by or to the party has been complied with; and

(c)any interrogatories delivered by or to the party have been answered under chapter 7, part 1, division 2; and

(d)as far as the party is concerned, all necessary steps in the proceeding (including steps to obtain disclosure or inspection of documents, admissions, particulars and answers to interrogatories) are complete; and

(e)all the party’s necessary witnesses will be available for the trial; and

(f)as far as the party is concerned, the proceeding is in all respects ready for trial; and

(g)if in the proceeding there is a claim for damages for personal injury or death—chapter 14, part 2 has been complied with.

  1. [14]
    Rule 469 states as follows:

“On the application of a party who has signed a request for trial date, the court may dispense with the signature of another party who has been served with the request under rule 467(2) and has not signed and returned it within 21 days after service.”

  1. [15]
    Rule 470 states as follows:

“After the filing of the request for trial date, a party may do the following only with the court's leave—

(a)amend a pleading;

(b)request particulars;

(c)make an application in the proceeding.”

  1. [16]
    In respect of r 444, it is apparent from r 443 that Chapter 11, Part 8 UCPR applies to the following applications:
  1. (a)
    an application for further and better particulars of the opposite party’s pleading under r 161;
  1. (b)
    an application under Chapter 10, Part 1;
  1. (c)
    an application under Chapter 10, Part 2;
  1. (d)
    any other application relating to a failure to comply with an order or direction of the court.

Interrogatories

  1. [17]
    By way of letter dated 22 November 2016, the defendants’ solicitors enclosed a set of interrogatories directed to the plaintiff. The defendant’s solicitors requested the plaintiff’s solicitors to advise within seven days whether the plaintiff would agree to answer the interrogatories, “failing which we will proceed to make an application for an order of the delivery of the interrogatories.”[3]
  1. [18]
    The interrogatories are clearly incomplete, ending abruptly in paragraph 12, and commencing at paragraph 13 but with no content. It is surprising that such a document would be sent to an opponent’s solicitors in such a form.
  1. [19]
    Rule 229 clearly states that interrogatories can only be delivered with the leave of the court. Rule 230 states as follows:

“(1)  Subject to an order of the court, the court may give leave to deliver interrogatories—

(a) on application without notice to another person; and

(b)only if the court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.

(2) The application must be accompanied by a draft of the interrogatories intended to be delivered, unless the court otherwise directs.

(3) However, a Magistrates Court may not give leave for this division unless the amount sued for is more than $7500.”

  1. [20]
    Of course, no application to seek such leave was before me, although in the course of argument it was submitted by counsel for the plaintiff that leave would not be granted. In effect, it was submitted that the late decision to deliver incomplete drafted interrogatories was a tactic to avoid this matter being listed for trial. As the issue of leave was not argued before me, I am simply not in a position to make any considered decision one way or another on that point.
  1. [21]
    In addition, the plaintiff argued that leave would not be given to deliver interrogatories because there was another “reasonably simple and inexpensive way of proving the matter,” that is, cross-examination of the plaintiff at trial.  A review of the filed documents reveals that the matter might not be as straight forward as the plaintiff contends.

Relevant authorities

  1. [22]
    In Harding v Boulton & Anor [2013] QDC 85, Smith DCJ considered that “the rules contemplate that two sorts of applications can be brought in this area.”   They are:
  1. An order can be made pursuant to r 467(2) if a defendant declines to sign a certificate of readiness.  Such an application would bring into play the various requirements of r 467.
  1. An application under r 469 may be brought as an alternative to an application to r 467(2). 
  1. [23]
    His Honour considered there were three important considerations on an application under r 469:
  1. (a)
    whether there is any significant reason as to why the matter should not be listed for trial;
  1. (b)
    the conduct of the parties; and
  1. (c)
    any prejudice which may be suffered by the party opposing the application if the order is made.
  1. [24]
    At para [55] of his judgment, His Honour said this:

“Contrary to the defendant’s submissions, I do not consider that the requirements of r 467(4) must be met prior to an order under r 469.  Rule 469 refers to the mere serving of the request under r 467(2).  Of course the matters mentioned in r 467(4) would be relevant to the exercise of the discretion under r 469.  Of course, the question of prejudice must also be considered.”

  1. [25]
    In that case, the defendant submitted that it was not ready for trial because it wished to investigate the Medicare claims history of the plaintiff. His Honour considered that as the proposed file date was to be in November, a setting down of that trial in May 2013 allowed sufficient time for the defendants to obtain the Medicare records and to engage independent experts if required.
  1. [26]
    In Mid Australia Pty Ltd v Around Australia Pty Ltd & Ors [2004] QSC 374, White J considered it premature to set a matter down for trial when there was still outstanding an expert accountant’s report.  In order to expedite the matter, Her Honour made orders about the delivery of that report. 

The competing arguments

  1. [27]
    The applicant, in essence, submits that there is no significant reason why the matter should not be set down. In response to the matters raised by the defendants, they make the following submissions:
  • No letter was required to be sent by the plaintiff pursuant to r 444;
  • The plaintiff responded to the defendant’s Notice to Admit by letter dated 18 November 2016;
  • The plaintiff responded to the defendant’s request for particulars on 18 November 2016;
  • The Notice to Admit Facts sent by the defendants seeks to introduce new allegations that have not been pleaded;
  • The draft interrogatories are, along with the Notice to Admit Facts, do not relate to any fact in issue between the parties;
  • The defendants are yet to seek leave to issue interrogatories, and it is unlikely that leave by the court would be given;
  • The only remaining interlocutory matter, the issuing of interrogatories, were not raised until after the application to dispense with the signature of the defendants was filed;
  • There had been an earlier request for trial dates to which the defendants responded that they were still awaiting counsel’s advice in respect of further interlocutory steps, and that disclosure was incomplete. The plaintiff requested the details of what outstanding interlocutory steps were to be taken, and the defendants did not, by 23 September 2016 or indeed at any time before the request for trial date was filed, respond to the request for details of the interlocutory steps said to be outstanding;
  • The defendants’ solicitors did not take any positive steps prior to the service of the request for trial date by responding to the proposal of the plaintiff for mediation to take place. It was not until 22 November 2016, seven days after the application was filed, that the defendant’s “finally selected a mediator from the list of mediators that the plaintiff proposed on 21 September 2016”;
  • The defendants will suffer no prejudice if the order sought is made. If the defendants still wish to mediate, that matter could be accommodated by directions that a mediation occur prior to trial, similar to the order made in Raedel v Jezer Constructions Group Pty Ltd [2006] QDC 257 and Stalski v Brown [2008] QDC 263.
  1. [28]
    The defendants, in essence, argued the following matters against the granting of the order:
  • There is a dispute about the contractual obligation to pay, which is a matter that renders the defendants presently unable to sign a request for trial date;
  • The defendants have not been able to fully investigate whether the plaintiff breached its warranties under the formal agreement, concerning whether the books of account truly and fairly reflected the affairs of the business, whether they accurately recorded the details of the trusts transactions, finances, assets and liabilities, and whether the trusts taxation affairs were in order;
  • The plaintiff served, on 13 September 2016, a request for trial date, when the plaintiff was not ready for trial, demonstrated by the plaintiff serving an amended reply and copies of documents that had been overlooked;
  • On 27 September 2016, the defendant served a further amended defence based upon emails that they found in search for documents to disclose, which were said to be matters of significance;
  • As the facts set out in the defendant’s Notice to Admit have been disputed, the defendants need to gather evidence to prove those facts at trial;
  • The defendants need to investigate whether a plea of fraud ought to be made regarding some or all of the identified transactions;
  • The defendants seek answers to interrogatories, and have sought the plaintiff’s consent to that.[4]It is said that the plaintiff’s answers to those interrogatories would then enable the defendants to know:
  1. (a)
    What the plaintiff says those significant transactions were about;
  1. (b)
    Whether the defendants are entirely wrong in their assessment of those transactions;
  1. (c)
    Whether further enquiry including notices of third party disclosure are required because of the answers that the plaintiff gives.
  • Answers to interrogatories, or any subsequent third party disclosure, may or may not lead the defendants to amend their defence to plead fraud.
  1. [29]
    In the course of oral argument, counsel for the defendant submitted that it was a legitimate issue for the defendants to seek leave to serve interrogatories on the plaintiff. In essence, the plaintiff submits that such leave would not be granted, and that therefore should not be a basis to delay the setting down of the trial. Reference was made to Ranger v Suncorp General Insurance Ltd [1999] 2 Qd R 433.

Conclusion

  1. [30]
    The philosophy of the Rules is clearly set out in r 5, where it is stated that the purpose of the Rules “is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”  Consequently, subsection (2) requires the courts to apply the Rules “with the objective of avoiding undue delay, expense and technicality, and facilitating the purpose of these rules.”
  1. [31]
    It is admirable that the plaintiff is ready to proceed to trial within 7 months of filing the original claim. There is not the delay, for example, that occurred in Hemmings v Suncorp Metway Insurance Ltd [2010] QDC 305. 
  1. [32]
    While I have doubts about whether any application for leave to serve interrogatories would be successful, and that any subsequent decision to seek third party disclosure is in the realm of speculation at this stage, I consider that there will be prejudice caused to the defendants if the application is granted. It is, of course, incumbent upon the defendants to take all remaining interlocutory steps as soon as possible.
  1. [33]
    In all of the circumstances, I refuse the application. In the circumstances given that the set of interrogatories were only sent after the present application I make no order as to costs. I also direct that any application by the defendant for leave to serve interrogatories be filed by 4:00pm Friday 9 December 2016.

Footnotes

[1]  Exhibit “RMH-5” to the affidavit of Richard Mark Hamwood. 

[2]  Exhibit “JB15” to the affidavit of Jamie William Byrne, filed on 25 November 2016. 

[3]  Exhibit “JB21” to the affidavit of Jamie William Byrne, filed 25 November 2016.

[4]  It is apparent on the material that the plaintiff does not consent to this. 

Close

Editorial Notes

  • Published Case Name:

    Hilchrist Pty Ltd v Visual Integrity Pty Ltd & Ors

  • Shortened Case Name:

    Hilchrist Pty Ltd v Visual Integrity Pty Ltd

  • MNC:

    [2016] QDC 310

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    02 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Harding v Boulton & Anor [2013] QDC 85
1 citation
Jump To
Cite 1 - [2013] QDC 85
Hemmings v Suncorp Metway Insurance Ltd [2010] QDC 305
1 citation
Jump To
Cite 1 - [2010] QDC 305
Mid Australia Pty Ltd v Around Australia Pty Ltd [2004] QSC 374
1 citation
Jump To
Cite 1 - [2004] QSC 374
Raedel v Jezer Constructions Group Pty Ltd [2006] QDC 257
1 citation
Jump To
Cite 1 - [2006] QDC 257
Ranger v Suncorp General Insurance Ltd [1999] 2 Qd R 433
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 433
Skalski v Brown [2008] QDC 263
1 citation
Jump To
Cite 1 - [2008] QDC 263

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.