Kinecho Pty Ltd & Ors v. Stevenson Transport Pty Ltd

[2004] QSC 57

[2004] QSC 057

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No S6319 of 1998

KINECHO PTY LIMITED

First Plaintiff

and

WILLIAM HAY and
MARGARITA HAY

and

STEVENSON TRANSPORT PTY LTD
(ACN 006 271 352)

and

LES CARLILE

Second Plaintiffs

First Defendant

Second Defendant

BRISBANE

..DATE 25/03/2004

ORDER

HIS HONOUR:  This is an application by the first plaintiff for leave to take a step in the proceedings and for the second plaintiff to be removed as a party to the proceedings.  It became apparent as soon as argument began that the first application was made only in the event that leave was required.  In my judgment, leave is not required.  The last step in the proceeding was further production of documents by the defendants which occurred this year.  Therefore, the preconditions for rule 389 to be engaged have not been made out. 

For the respondents, Mr Kent submitted that the production of documents being purely inter partes was not a step in the proceedings within the meaning of the rule.  He submitted by a parallel submission that such production does not advance the action.  Production of relevant documents which are required to be produced is something which is required by the rules and forms a precursor to other steps in the action; later steps cannot take place until disclosure has occurred. 

The giving of disclosure is therefore, in my view, something which does advance the proceedings.  It moves the action closer to the point of its conclusion.  The fact that it occurs between the parties does not seem to me to be a reason why this should not be the position.  The more steps that can be taken between the parties without the additional cost of involving the Court, the cheaper will be the litigation and it is, therefore, something to be encouraged.  It is certainly encouraged by the rules. 
I have noted a reference in the annotations to the rules to the decision in Paradise Grove Proprietary Limited v. Stubberfield [2000] QSC 214, but neither party provided me with a copy of that decision, nor did either in those circumstances have the gall to rely upon it and I do not take it into account beyond saying that here a good deal more than merely filing a list has occurred. The parties have had production of documents. In my view, it is unnecessary to make an order in accordance with paragraph 1 of the application.

The plaintiffs seek the removal of the second plaintiffs as parties.  That seems to me to be a matter of the plaintiffs' call in circumstances where the defendants neither consent to nor oppose that course.  And therefore, I am prepared to order it pursuant to rule 69:  order that the second plaintiffs, William Hay and Margarita Hay, be removed as parties to the proceeding. 

The draft order which has been placed before me provides for the remaining plaintiff to have leave to deliver an amended statement of claim.  It has not been demonstrated to me that leave is necessary.  I will hear the parties on the question of costs. 

...

HIS HONOUR:  The orders will be, order that William Hay and Margarita Hay be removed from the proceedings.  By consent order that the costs of the application be costs in the cause. 

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