Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd
[2010] QSC 381
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- Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2010] QSC 381
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Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2010] QSC 381
Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd[2010] QSC 381
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 7 October 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Application on the papers |
JUDGE: | McMurdo J |
ORDER: | 1. The application is dismissed. 2. There be no order for costs in respect of this application. |
CATCHWORDS: | PROCEDURE – DISCOVERY AND INTERROGATORIES – INTERROGATORIES – WHO MAY BE INTERROGATED – where the person to be interrogated is not a party to the proceeding and has not been served with this application – whether the court should exercise its auxiliary equitable jurisdiction to grant leave to serve interrogatories on the non-party. Norwich Pharmacal Co & Ors v Customs and Excise Commissioners [1974] AC 133 Re Pyne [1997] 1 Qd R 326 |
SOLICITORS: | Tucker & Cowen for the applicants |
[1] The applicants have applied for an order that they be granted leave to serve interrogatories. It is not an application made under r 229 of the UCPR because the person to be interrogated is not the defendant or otherwise a party to the proceeding. He is Mr B C Rubin who features in an oral agreement alleged by the applicants in paragraph 10 of the statement of claim. That is not an agreement to which the applicants were parties. In effect, the applicants wish to interrogate him to find out more about the oral agreement which they have alleged.
[2] Recognising that r 229 does not apply, the applicants refer to Re Pyne[1] from which they argue that there is a power to order the provision of information by a non-party. However, the jurisdiction invoked in that case was identified as the Court’s auxiliary equitable jurisdiction as explained by Lord Reid in Norwich Pharmacal Co v Customs and Excise Commissioners.[2] It arises in circumstances where a person, wittingly or otherwise, has become mixed up in the tortious acts of others so as to facilitate their wrongdoing. It is said that such a person has a duty to assist the person who has been wronged by providing him with full information disclosing the identity of the wrongdoers. That is not the present case. The jurisdiction relied upon does not exist here.
[3] In any case, this application was made on the papers without its being served upon Mr Rubin, as it ought to have been. The person against whom orders were sought in Re Pyne was served and was heard upon the application.
[4] The application is dismissed and it will be ordered that there be no order for costs in respect of this application.