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Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd[2024] QSC 171

Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd[2024] QSC 171

SUPREME COURT OF QUEENSLAND

CITATION:

Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd [2024] QSC 171

PARTIES:

STOCKINGHAM PTY LTD ACN 615 829 082 (FORMERLY KNOWN AS APAGEIN BIOTECH PTY LTD)

(plaintiff)

v

BRISBANE ANGELS NOMINEES PTY LTD ACN 122 839 294

(first defendant)

AND

JOHN DUGALD MACTAGGART

(second defendant)

AND

ALAN JAMES MONAGHAN

(third defendant)

AND

FREDERICK RICHARD HOULT

(fourth defendant)

FILE NO/S:

BS 11902/20

DIVISION:

Trial

PROCEEDING:

Application (Commercial List review)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2024; 17 July 2024

JUDGE:

Freeburn J

ORDERS:

  1. The court directs that the plaintiff may rely on as evidence-in-chief at the trial of the proceeding:
    1. the statement of Julie van Eps filed on 4 June 2024; and
    2. the supplementary statement of Julie van Eps dated 4 June 2024 (and marked as exhibit 1).
  2. The order in paragraph 1 be subject to any valid objections to admissibility.
  3. I will hear the parties on costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – SELF-EXECUTING ORDERS – where a self-executing/ guillotine order required the plaintiff, Stockingham to provide material by certain dates – where previously, Stockingham breached the order by ten minutes – where the court granted an extension and made further directions – where Stockingham served additional material – whether the guillotine orders have been triggered – whether the court has jurisdiction to grant an extension

EVIDENCE – OPINION EVIDENCE – EXPERT OPINION – where Stockingham served the Supplementary Statement purporting that it was expert evidence – whether the Supplementary Statement, in substance, is expert evidence

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – where Stockingham sought to rely on additional evidence outside that permitted by case management orders – whether leave should be granted

Uniform Civil Procedure Rules 1999 r 5, r 7, r 367, r 668

Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49, cited

Chand v Railcorp [2011] NSWCA 79, cited

Couran Cove Resort Community Body Corporate v The Proprietors of Couran Cove Resort-Broadwater Villas GTP 106807 [2022] QSC 247, cited

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1998) 165 CLR 268; [1988] HCA 13, applied

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45;

Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435; [1998] QCA 282, cited

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199, applied

Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241, applied

COUNSEL:

L Campbell (on direct brief) for the plaintiff

D Pyle and A Schriiffer for the defendants

SOLICITORS:

GRT Lawyers for the first, second, third and fourth defendants

  1. [1]
    The plaintiff, Stockingham Pty Ltd, applies for the following order:

“1. Pursuant to rule 367(1) of the Uniform Civil Procedure Rules 1999 (Qld) and order 6 of the orders of Justice Applegarth dated 18 April 2024, or alternatively in the exercise of the inherent jurisdiction of this Honourable Court, the Court directs that the plaintiff may rely upon or adduce the evidence given in –

  1. the statement of Julie van Eps filed on 4 June 2024 (Court document # 141); and
  1. the supplementary statement of Julie van Eps dated 4 June 2024 marked ‘exhibit 1’ on the Court file.”
  1. [2]
    The statement of Ms van Eps, which I will refer to as the Statement, is said to be a consolidation of eight previous affidavits of Ms van Eps. The Statement was required to be filed and served by Stockingham pursuant to orders of Applegarth J made on 18 April 2024. The Supplementary Statement is a more problematic document which the defendants allege comprises expert evidence.
  2. [3]
    The defendants resist Stockingham’s application on the basis that the effect of a guillotine order made on 15 February 2024, and extended in part on 18 April 2024, is that the defendants are entitled to judgment. In other words, the defendants argue that the case against them is at an end.
  3. [4]
    The context requires some explanation.  The proceeding is presently managed on the Commercial List. The interlocutory steps in the litigation have been hard-fought with a number of excursions to the Applications List and to the Court of Appeal.
  4. [5]
    The latest battle begins with self-executing (or ‘guillotine’) orders made on 15 February 2024.  Order 1 of those orders was as follows:

“Unless:

  1. by 4pm on 29 February 2024, the plaintiff has complied with order two (file and serve evidence-in-chief of each lay witness on which it relies) of the orders made on 5 October 2023; and
  1. by 4pm on 28 March 2024, the plaintiff has complied with order one (serve any expert evidence on which it intends to rely at trial) of the orders made on 5 October 2023,

then upon the solicitor for the defendants filing an affidavit deposing to the non-compliance:

  1. judgment shall be entered for the defendants against the plaintiff on the plaintiff’s claim and the claim be dismissed;
  1. judgment shall be entered for the defendants against the plaintiff on the defendants’ second further amended counterclaim, in that the plaintiff shall pay to the defendants the sum of $185,000 plus pre-judgment interest thereon pursuant to section 58 of the Civil Proceedings Act 2011 (Qld) from 9 December 2022 until 28 March 2024 pursuant to the default judgment interest rate in practice direction 7 of 2013 in the amount of $18,347.14; and
  1. the plaintiff pay the defendants’ costs of the proceeding.”
  1. [6]
    When that guillotine order was made, Stockingham was in breach of the court’s orders made on 5 October 2023 requiring Stockingham to file and serve its lay evidence and serve its expert evidence.  The guillotine order required Stockingham’s lay evidence by 4.00pm on 29 February 2024 and its expert evidence by 4.00pm on 28 March 2024.  If there was a default, the defendants were entitled to file an affidavit deposing to the non-compliance and to obtain judgment for dismissal of the Stockingham’s claim and judgment on the defendant’s counterclaim. The period since the making of the guillotine order has involved Stockingham skating on thin ice on two occasions.
  2. [7]
    The first occasion involved Stockingham filing and serving its lay evidence at 4:10pm 29 February 2024, in breach of order 1(a) which required the lay evidence by 4:00pm. The defendants filed an application, on 25 March 2024, seeking judgment to be entered. On 8 April 2024 Stockingham filed a cross-application seeking orders extending time. Ultimately, after a one-day hearing on 18 April 2024, Applegarth J made an order that extended the timeframe of order 1(a) by ten minutes.
  3. [8]
    The second occasion has led to the present dispute. On 4 June 2024 Stockingham sent an email to the defendants attaching, by way of service, the Supplementary Statement. Stockingham sought leave to rely on the Supplementary Statement at the trial. The defendants submit that Stockingham’s provision of the Supplementary Statement gives rise to an entitlement to judgment against Stockingham in accordance with the guillotine orders.

The Issues

  1. [9]
    Three issues arise. The first issue is whether the Supplementary Statement is expert evidence. That issue matters, apparently, because there are different timetables applying to lay and expert evidence. The second issue is whether the guillotine has fallen in the sense that the defendants have already obtained judgment or are entitled to obtain judgment pursuant to the terms of the guillotine orders. The result, the defendants contend, is that the proceeding is at an end and the court has no further jurisdiction. The third issue is whether, if the court has power to do so, leave should be granted for Stockingham to rely on the Statement and the Supplementary Statement.
  2. [10]
    I will deal with each of the three issues, but in a different order.

Has the Guillotine Fallen?

  1. [11]
    The defendants submit that the guillotine has fallen and that the court does not have jurisdiction to make the orders sought by Stockingham. The defendants’ submissions were predominantly directed to a breach of order 1(b), which required Stockingham to serve its expert evidence by 28 March 2024. However, even absent the characterisation of the Supplementary Statements as expert evidence, the defendants make this submission:

Even if the statement of Mrs van Eps is in fact lay evidence, and does not contain expert evidence (although it clearly contains purported expert evidence), it simply means that the non-compliance is from 29 February 2024 as opposed to 28 March 2024. Mr Sloan filed a further affidavit deposing to that non-compliance on 27 June 2024.[1]

  1. [12]
    The precise words of the orders pose something of a problem for the defendants’ strict and technical approach to the interpretation and enforcement of the orders of the court. Order 1(a) of the guillotine orders provide that the plaintiff is to “file and serve evidence-in-chief of each lay witness on which it relies”[2] by 4pm on 29 February 2024. In a literal sense Stockingham has not yet filed and served the Supplementary Statement and it does not yet rely on the Supplementary Statement. Instead, what Stockingham has done is to serve the Supplementary Statement and to seek the court’s leave to rely on it.[3] It cannot be the case that Stockingham relies on the Supplementary Statement when an issue before the court is whether it should be given permission to rely on it.
  2. [13]
    It is necessary to bear in mind two parts to the philosophy of modern civil litigation stated in rule 5 of the Uniform Civil Procedure Rules 1999 (UCPR). 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. And the rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality.
  3. [14]
    With that philosophy in mind, it is necessary to be careful to ensure that timetables do not become an end in themselves. The objective of ordering parties to file and serve their evidence-in-chief in advance of the hearing is to ensure that each party understands the precise detail of their opponents’ case. It also serves to shorten the ‘in court’ hearing time and to bring forward disputes about the admissibility of evidence.[4] Those are advantages in the process. That said, there may well be occasions where a party seeks to supplement its evidence. That can occur whether the evidence-in-chief is given orally at trial in the traditional way, or by way of witness affidavit or statement prior to trial. The discretion to permit that type of supplementary evidence is a case management discretion to be exercised having regard to the usual factors, including whether the opposite party is prejudiced. The intention of the rules and of the court’s orders is not to punish parties for their mistakes. It is to facilitate the just and expeditious resolution of the real issues in dispute.
  4. [15]
    When the guillotine order was made on 15 February 2024, the objective was to ensure that Stockingham properly complied with the court’s orders by filing and serving its lay evidence by 29 February 2024 and its expert evidence by 28 March 2024. The order was designed to ensure that Stockingham complied with the orders of the court that had been made. The evident objective of the guillotine order was not to regulate the steps to be taken in the future. In particular, the objective was not to shut out Stockingham from ever saying, in effect, ‘I appreciate there are orders requiring the evidence-in-chief to be filed and served earlier, but I seek the court’s leave to supplement that evidence’. Indeed, at the trial either party may well seek the trial judge’s leave to add to that party’s evidence-in-chief.
  5. [16]
    In those circumstances, I do not accept that the conduct of Stockingham in serving the Supplementary Statement on 4 June 2024, and in seeking the leave of the court to rely on that evidence, constitutes a breach of order 1(a) of the guillotine order.
  6. [17]
    The situation is similar, but perhaps a little murkier, for order 1(b) of the guillotine orders. That order states that Stockingham must “serve any expert evidence on which it intends to rely at trial”[5] by 4pm on 28 March 2024. That order was similarly designed to ensure compliance with the court’s orders, rather than seeking to regulate the trial or the lead-up to the trial.
  7. [18]
    The defendants submit that, by virtue of the email sent by counsel for Stockingham on 4 June 2024 enclosing the Supplementary Statement,[6] and assuming the Supplementary Statement to be expert evidence, Stockingham has breached order 1(b).
  8. [19]
    Stockingham submits that the principle of res judicata applies because of orders made by Applegarth J.[7] The orders made by Applegarth J on 18 April 2024 included a dismissal of the defendants’ application for judgment (by extending the time of compliance by 10 minutes) and directions for the future conduct of the matter.[8]
  9. [20]
    The res judicata argument has little to commend it. In Port of Melbourne Authority v Anshun Pty Ltd, Gibbs CJ, Mason and Aickin JJ explained res judicata as:

The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.[9]

  1. [21]
    The purpose of the principle is for final decisions to remain final. A prerequisite is, of course, for the decision to be final. In Ainslie v Ainslie, Isaacs J said (emphasis added):

If a judgment is put forward as a bar because by it a matter in contest in another proceeding is res judicata, it must, in my opinion, be final in its nature. I also accede to the contention that an order such as the one under consideration, so far as it directs payment of a weekly sum, is, in view of sec. 5 quoted, not final, and therefore not capable of being made the foundation of an action to recover the money. The statutory method of recovery (sec. 7) must be followed. But it is stating the relevant proposition much too widely to say that, because the Court that makes an order may revise it or discharge it, that conclusively shows the order is not final in the required sense.[10]

  1. [22]
    Similar principles apply for issue estoppels.[11]
  2. [23]
    The requirement of finality is not satisfied here. The orders made by Applegarth J were case management orders and do not comprise a final judgment of the court. They were interlocutory orders made for the purpose of case management. The requirement of finality in the context of interlocutory orders is discussed by Hodgson JA in Chand v Railcorp (emphasis added):

What the Appeal Panel actually did was to make orders affirming and setting aside specified orders of the Tribunal, and orders extending the appeal to a hearing on the merits; and to give directions concerning the structure of the further hearing on the merits. These directions were plainly not final orders. The matters set out in para [45] of the Appeal Panel's first judgment were not the basis of any of the final orders made by the Appeal Panel, but only the basis of interlocutory directions concerning the structure of the further hearing; and as such they do not amount to findings that could give rise to res judicata or issue estoppel, or that are otherwise unalterable by the Appeal Panel.[12]

  1. [24]
    However, the orders made by Applegarth J did have an effect on the guillotine orders. A court has the power to vary or vacate its own orders, as reflected either through its inherent jurisdiction and the UCPR. For example, rule 367(6) of the UCPR provides “The court may at any time vary or revoke an order or direction made under this rule”.
  2. [25]
    The purpose of the guillotine order was for Stockingham to file and serve its lay evidence and serve its expert evidence on fixed dates – in an effort to progress the proceeding. That reflects a central purpose of guillotine orders – to compel a party to do something by a required time. The guillotine orders have compelled Stockingham to do the following:
    1. Stockingham filed and served its lay evidence, albeit 10 minutes late.
    2. Stockingham served an expert report of Dr David Randerson on 8 March 2024 – within time.[13]
  3. [26]
    In view of the material filed, His Honour made further directions that provided for the defendants to respond. Evidently, His Honour was satisfied with compliance.
  4. [27]
    In oral submissions, I asked about the hypothetical situation where an expert gave supplementary evidence from the witness box during the trial – would that give rise to the guillotine order operating? Counsel for the defendants answered this by submitting that Stockingham would need to obtain leave in that instance.[14] In my view that answer is right, but the answer illustrates the problem. By this application, Stockingham seeks the court’s leave to rely on the Supplementary Statement.
  5. [28]
    For the above reasons, I conclude that the guillotine order has been satisfied. The guillotine orders were not intended to bar Stockingham from seeking the court’s leave to rely on further lay or expert evidence. And, the guillotine has not fallen by reason of Stockingham’s in serving the Statement and Supplementary Statement on 4 June 2024. However, if I am wrong, and the guillotine has in fact fallen, I need to consider whether the court has jurisdiction to vary the guillotine orders.[15]

Jurisdiction

  1. [29]
    On 7 June 2024, the defendants filed an affidavit deposing to non-compliance. As explained above, the defendants adopt the stance that judgment has been entered and the court no longer has jurisdiction to make the orders sought by Stockingham.[16] Reference was made to the following extracts of Bailey v Marinoff:

This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognise the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend to the making of orders in litigation that has been brought regularly to an end.[17]

  1. [30]
    Similarly, in Bailey v Marinoff Barwick CJ said this:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.[18]

  1. [31]
    It can be accepted that, as a result of the judgments in Bailey v Marinoff, the court does not have inherent jurisdiction to vary a guillotine order once that order has taken effect. However, in FAI General Insurance Co Ltd v Southern Cross Exploration NL, Wilson J drew a distinction between the court’s inherent jurisdiction and the court’s powers under the relevant rules of the court.[19] If provided for, the court is permitted to extend the time of a guillotine order after it has taken effect. In my view, rules 7, 367(b) and 668 of the UCPR all provide for the court to exercise such a discretion.[20]
  2. [32]
    In Rankin v Agen Biomedical Ltd[21] the Court of Appeal found that an extension to a guillotine order was validly given by Byrne J to permit the respondent to file a list of issues which had previously been mistakenly omitted.[22] Similarly, in Couran Cove Resort Community Body Corporate v The Proprietors of Couran Cove Resort-Broadwater Villas GTP 106807[23] there was substantial compliance warranting an extension to the guillotine order.
  3. [33]
    In my view, the rules of court permit the court to extend the time specified in a guillotine order. Even if the guillotine has fallen, the court is not deprived of jurisdiction.
  4. [34]
    As explained, the evident purpose of the guillotine orders was to compel Stockingham to file material – which it did.[24] Stockingham now seeks leave to rely on the additional material. Such an application does not engage the guillotine orders made in February 2024. To suggest that it does is a technical argument. Even if it were reasonably arguable that the guillotine order was engaged by Stockingham’s conduct in seeking to rely on supplementary material in June 2024, the court is required to apply the rules with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules. One of those purposes, of course, is the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  5. [35]
    For the above reasons, I conclude that the court has jurisdiction to extend the timeframes of the guillotine order. I also conclude that an extension is warranted in these circumstances – if I am wrong and there was a breach of the guillotine orders.

Is the Supplementary Statement Expert Evidence?

  1. [36]
    As briefly described above, what gave rise to the present predicament was an email sent by counsel for Stockingham to the defendants, attaching the Supplementary Statement:

Please find attached by way of service a supplementary witness statement of Julie van Eps. This statement contains confidential information regarding the therapeutic the subject of the proceedings and is provided on the basis that is contains expert evidence covered by order 1 of the Court’s orders dated 8 March 2024.[25] [emphasis added]

  1. [37]
    For reasons that are not entirely clear, the parties are at loggerheads about whether the Supplementary Statement can be properly characterised as expert evidence or not. As can be seen, Stockingham labelled the Supplementary Statement as containing expert evidence. The defendants say the description is an accurate one. But Stockingham now contends the opposite – namely that the Supplementary Statement is not expert evidence.
  2. [38]
    The wording used in the covering email, and statements made during reviews by counsel for Stockingham, are not determinative of whether the Supplementary Statement is expert evidence. The substance needs to be considered.
  3. [39]
    Bond J summarised the essential requirements for expert evidence to be admissible in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7):[26]

In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85], Heydon JA stated that for expert opinion evidence to be admissible, it must meet the following criteria:

  1. It must be agreed or demonstrated that there is a field of “specialised knowledge”;
  2. there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
  3. the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”;
  4. so far as the opinion is based on facts “observed” by the expert, those facts must be identified and admissibly proved by the expert;
  5. so far as the opinion is based on “assumed” or “accepted” facts, those facts must be identified and proved in some other way;
  6. it must be established that the facts on which the opinion is based form a proper foundation for it; and
  7. finally, the expert’s evidence must explain how the field in which the expert has expertise — as established pursuant to (a), (b) and (c) — applies to the facts assumed or observed so as to produce the opinion propounded.
  1. [40]
    Of course, those are the requirements for expert evidence to be admissible. Expert evidence might still be able to be described as expert evidence even though it does not meet all the tests derived from Makita. One concept that is central to expert evidence is that an expert report expresses an opinion based on some established or assumed facts.
  2. [41]
    I am not sure what to make of the Supplementary Statement. It is a statement by Ms Van Eps who was the principal representative of Stockingham at the relevant times. That does not disqualify Ms Van Eps from giving evidence as an expert, although the lack of independence may affect the weight that the trial judge gives to any expert opinion she expresses. That said, the Supplementary Statement appears to be a rather weird combination of statements of facts by a lay witness (for example, the results of pilot trials of a weight loss drug), and some technical information about drugs and patents, and some submissions in response to the defence. The drafting does occasionally lean towards the realm of opinion, but no assumed or established facts are recited, and no opinion is directly expressed. The Supplementary Statement is certainly not in the format of an expert report. Some parts of the Supplementary Statement are unlikely to be comprehensible to the trial judge. An example is this sentence: “Beta-hydroxybutyrate (BHB) is not DBH”.[27] 
  3. [42]
    The idea that the Supplementary Statement be comprehensible to the trial judge seems to have escaped those who drafted the document.
  4. [43]
    I would conclude that the Supplementary Statement is not, in substance, expert evidence. It is certainly not admissible expert evidence and does not meet the requirements of Chapter 11 Part 5 of the UCPR. Viewing the Supplementary Statement as a whole shows that it is a collection of facts which Ms Van Eps wishes to put before the court rather than expert opinion. In any event, given the view I have taken of the guillotine order, not much turns on the characterisation of the Supplementary Statement. The view I have come to, that it is lay evidence, merely means that the context is that all of Stockingham’s lay evidence was required to be filed and served by 29 February 2024.

Granting of Leave to Rely on Further Evidence

  1. [44]
    Stockingham’s proposed orders seek leave to rely on both the Statement and Supplementary Statement. Stockingham’s submissions are based on the considerations set out by Bond J in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4)[28] relevant to determining whether a party should be granted leave to adduce and rely on further evidence:
    1. the point the litigation has reached in the trial;
    2. the extent of any failure to comply with the directed timetable;
    3. the adequacy of the plaintiffs’ explanation for its delay in presenting the real case it wanted to take to trial;
    4. the prejudice which would be caused to the plaintiffs if leave is refused, including whether the plaintiffs might be denied a fair opportunity to present their real case;
    5. the effect on other litigants awaiting resolution of their proceedings;
    6. the extent to which prejudice on either side can be ameliorated by alteration of the existing timetable.
  2. [45]
    The defendants oppose the proposed orders for the following reasons:
    1. There has been a history of delay and non-compliance of court orders by the plaintiff;[29]
    2. The plaintiff has had a sufficient opportunity to put on evidence;[30]
    3. Costs and prejudice to the defendants.[31]
  3. [46]
    Ultimately, I conclude that Stockingham should have leave to rely on the Statement and Supplementary Statement after weighing the factors set out in Sanrus.
  4. [47]
    Both parties accuse each other of causing the delays in this matter. Certainly, this proceeding has been a substantial drain on court time and resources due to the constant interlocutory skirmishes. It would further drain that time and resources to try to allocate a degree of blame, or a period of delay, to each of the litigants. It is sufficient to note that Stockingham has been subject to guillotine orders in order to compel compliance. But, given that the trial is not yet on the horizon, I would not consider Stockingham’s past delays to be a solid reason for barring Stockingham from relying on the relatively short Supplementary Statement of under eight pages. The same can be said about the Statement – a document consolidating eight previously filed and served affidavits. 
  5. [48]
    Stockingham has provided medical certificates and has attributed the delay to sickness on the part of counsel and Mrs van Eps.[32] This submission only explains part of the delay. I find other factors more persuasive. 
  6. [49]
    The defendants have set out, in detailed written submissions, as to why they have been prejudiced by Stockingham’s conduct.[33] Those submissions can be summarised in this way:
    1. The defendants have incurred costs, some of which have been fixed but remain unpaid by Stockingham or Mr van Eps (who gave a guarantee as security for costs);
    2. There has been significant delay in getting the proceeding to a trial and a long delay gives rise to a general presumption of prejudice;[34]
    3. The conduct of Stockingham is such that its case, which the defendants describe as “hopeless”, is likely to continue to be “dogged by unnecessary and unjustified delays”.[35]
  7. [50]
    As stated, no trial has been set down. The only impediment to it being set down is the need for the defendants to put on their evidence-in-chief in response to Stockingham’s evidence-in-chief.
  8. [51]
    Importantly, the defendants do not say that they are unable to deal with the Statement or the Supplementary Statement. The defendants have already had notice of the substantive content of the Statement. The Statement, because it is a consolidated version of eight previous statements, should assist in the comprehension of Stockingham’s lay evidence. No doubt that was the intent of Applegarth J’s orders.
  9. [52]
    As I have explained, the objective is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. That is difficult where the parties continue to fight each other on every battleground possible. It is difficult where the evidence has been tendered after significant delay and appears to be rather disordered.  But past delays, past unnecessary expenses, and even incompetence in trial preparation, are rarely good reasons for preventing a party from adducing the evidence it wishes to adduce for a trial. The rules are not designed to punish parties for their mistakes and delays.
  10. [53]
    A court should be cautious about making orders that put at risk a party having a proper opportunity to present its case in the way it wishes. At this distance from trial, there may well be detail and nuances to Stockingham’s case that are not appreciated.
  11. [54]
    For those reasons, the preferable course is to allow Stockingham to file and serve the Statement and Supplementary Statement.
  12. [55]
    I draw the following conclusions:
    1. The guillotine orders have not fallen;
    2. If I am wrong, and there was a breach of the guillotine orders, an extension is warranted in these circumstances;
    3. The Supplementary Statement is not expert opinion evidence; and
    4. Stockingham should be given leave to rely on the Statement and the Supplementary Statement, but subject to any valid objections to admissibility.

Footnotes

[1]Defendants’ submissions at [13].

[2]Emphasis added.

[3]Stockingham’s Application filed on 21 June 2024.

[4]This list is not intended to be exhaustive.

[5]Emphasis added. Note that the requirement that the expert evidence be merely served may be because some material is claimed to be confidential and so is only filed if protections are put in place.

[6]Affidavit of Alexander John Button Sloan affirmed on 7 June 2024, exhibit AJS-10 at page 5.

[7]Stockingham Outline in Reply at [12].

[8]These orders were recorded in separate documents on the court file.

[9](1981) 147 CLR 589, quoted in Chamberlain v Deputy Commissioner of Taxation (1988) 163 CLR 502 at 507-8; Mango Boulevard P/L v Spencer & Ors [2010] QCA 207 at [90].

[10](1927) 39 CLR 381 at 389.

[11]Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 517. Note the distinctions between the principles of res judicata and issue estoppel: Blair v Curran (1939) 62 CLR 464 at 531-2, which was cited with approval in Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219 at [49]. 

[12][2011] NSWCA 79 at [52].

[13]Affidavit of Alexander John Button Sloan affirmed on 5 June 2024 at [33].

[14]Transcript from the review on 17 July 2024 at page 4.

[15]This issue was raised by the defendants.

[16]Defendants’ submissions at [24] to [30].

[17](1971) 125 CLR 529 at 531-2.

[18]Ibid at 530.

[19](1988) 165 CLR 268 at 283-6.

[20]See Couran Cove Resort Community Body Corporate v The Proprietors of Couran Cove Resort-Broadwater Villas GTP 106807 [2022] QSC 247 at [47].

[21][1999] 2 Qd R 435.

[22]This was pursuant to Order 45 rule 1 Supreme Court Rules 1991, the predecessor to the Uniform Civil Procedure Rules 1999.

[23][2022] QSC 247.

[24]Of course, the lay evidence was filed with Applegarth J’s leave.

[25]Affidavit of Alexander John Button Sloan affirmed on 7 June 2024, exhibit AJS-10 at page 5. See also Transcript from the review on 7 June 2024, page 18 which is exhibit “ASH-8” to the Affidavit of Ashley Stephen Hill sworn on 11 July 2024.

[26][2019] QSC 241 at [94].

[27]Supplementary Statement at [15].

[28][2019] QSC 199 at [87].

[29]This is covered extensively in the defendants’ submissions at [32] to [56].

[30]Defendants’ submissions at [57] to [60].

[31]Ibid at [61] to [77].

[32]See Affidavit of Julie van Eps affirmed on 21 June 2024 at [22] to [29].

[33]Defendants’ submissions at [61] to [77].

[34]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

[35]Defendants’ submissions at [77].

Close

Editorial Notes

  • Published Case Name:

    Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd

  • Shortened Case Name:

    Stockingham Pty Ltd v Brisbane Angels Nominees Pty Ltd

  • MNC:

    [2024] QSC 171

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    09 Aug 2024

  • White Star Case:

    Yes

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
Agen Biomedical Limited v Rankin [1998] QCA 282
1 citation
Jump To
Cite 1 - [1998] QCA 282
Ainslie v Ainslie (1927) 39 CLR 381
1 citation
Jump To
Cite 1 - (1927) 39 CLR 381
Bailey v Marinoff (1971) 125 CLR 529
2 citations
Jump To
Cite 1 - (1971) 125 CLR 529
Cite 2 - (1971) 125 CLR 529
Bailey v Marinoff [1971] HCA 49
1 citation
Jump To
Cite 1 - [1971] HCA 49
Blair v Curran (1939) 62 C.L.R., 464
1 citation
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
1 citation
Jump To
Cite 1 - (1996) 186 CLR 541
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
1 citation
Jump To
Cite 1 - [2008] 2 Qd R 219
Chamberlain v Deputy Commissioner of Taxation (1988) 163 CLR 502
1 citation
Jump To
Cite 1 - (1988) 163 CLR 502
Chand v Railcorp [2011] NSWCA 79
2 citations
Jump To
Cite 1 - [2011] NSWCA 79
Cite 2 - [2011] NSWCA 79
Couran Cove Resort Community Body Corporate v Proprietors of Couran Cove Resort Broadwater Villas [2022] QSC 247
3 citations
Jump To
Cite 1 - [2022] QSC 247
Cite 2 - [2022] QSC 247
Cite 3 - [2022] QSC 247
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13
1 citation
Jump To
Cite 1 - [1988] HCA 13
FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268
1 citation
Jump To
Cite 1 - (1988) 165 CLR 268
FAI General Insurance Company Ltd v Southern Cross Exploration NL (1998) 165 CLR 268
1 citation
Jump To
Cite 1 - (1998) 165 CLR 268
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
1 citation
Jump To
Cite 1 - (1991) 23 NSWLR 508
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 705
Mango Boulevard Pty Ltd v Spencer [2010] QCA 207
1 citation
Jump To
Cite 1 - [2010] QCA 207
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
2 citations
Jump To
Cite 1 - (1981) 147 CLR 589
Cite 2 - (1981) 147 CLR 589
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
1 citation
Jump To
Cite 1 - [1981] HCA 45
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 435
Cite 2 - [1999] 2 Qd R 435
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199
2 citations
Jump To
Cite 1 - [2019] QSC 199
Cite 2 - [2019] QSC 199
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241
2 citations
Jump To
Cite 1 - [2019] QSC 241
Cite 2 - [2019] QSC 241

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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