Annetts v Robison

[2025] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION:

Annetts v Robison [2025] QSC 120

PARTIES:

DOUGLAS JAMES ANNETTS

(applicant)

v
MARK STEPHEN ROBISON

(respondent)

FILE NO/S:

BS 10672 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made on 15 May 2025; reasons delivered on 27 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1.    Leave be granted pursuant to r 72(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for further steps in the proceeding to be taken in accordance with the following orders and directions of the Court.

2. Pursuant to r 72(2) of the UCPR “Pamela Dorothy Annetts, as Executor of the Estate of Douglas James Annetts” be substituted as Plaintiff.

3. Pursuant to r 375 of the UCPR, leave be granted for the Plaintiff to file and serve an Amended Claim and Amended Statement of Claim (ASOC) substantially in the terms of exhibit “LJP-01 and LJP-02” to the Affidavit of Luke John Pearcy filed 13 May 2025.

4.    Subject to any further or other order or direction of the Court:

(a)   The Plaintiff file and serve the Amended Claim and the ASOC within seven days;

(b)  The Defendant file and serve an Amended Defence to the ASOC within 14 days of service of the ASOC (“the Amended Defence”);

(c)   The Plaintiff file and serve any Reply to the Amended Defence within 14 days of service of the Amended Defence;

(d)  The Plaintiff file and serve an Amended Statement of Loss and Damage within 14 days of the service of the Amended Defence;

(e)   The Plaintiff file and serve any further List of Documents, and the Defendant file and serve any further Statement of Expert and Economical Evidence, within 14 days of the service of the Amended Defence;

(f) The parties are to participate in a mediation which complies with r 553 of the UCPR, by no later than 30 June 2025;

(g)   Each party have liberty to apply upon giving the other party no less than three clear business days’ notice in writing.

5.    The costs of this Application be costs in the cause.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – PROCEEDINGS BY PERSONAL REPRESENTATIVES – INSTITUTION OR CONTINUATION OF PROCEEDINGS ON BEHALF OF DECEASED – where the plaintiff died shortly after commencing proceedings – where the executrix of the plaintiff’s estate seeks to be substituted as the plaintiff in the proceedings – where the parties have consented to the orders sought – whether the discretion to substitute the executrix as the plaintiff should be exercised – where the parties seek to have the application determined without oral hearing – whether the application should be determined on the papers

Uniform Civil Procedure Rules 1999 (Qld), r 72, r 73, r 371, r 489, r 490

Foppli v Public Trustee [1970] WAR 73, cited
Re Chambers (deceased) (2023) 16 QR 367; [2023] QSC 230, cited
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290, cited

COUNSEL:

Written submissions for the applicant prepared by K F Holyoak
No written submissions by the respondent

SOLICITORS:

Accident Legal for the applicant
McInnes Wilson Lawyers for the respondent

1. The executrix of the estate of the plaintiff, Douglas James Annetts, who died after the proceedings were commenced, seeks to be substituted as plaintiff and seeks various other orders to regularise the proceedings.

2. Mr Annetts ran a business called “DJ Annetts Transport”.  That business operated a fleet of trucks which delivered stone and landscaping materials to building sites.

3. The defendant, Mark Stephen Robison, conducted a landscaping business.

   Background

4. Mr Robison performed some earthworks on a property at Emu Park in Central Queensland.  The earthworks involved the use of an excavator.  In the course of the works Mr Robison allegedly damaged a manhole lid and the rim of a stormwater drain. 

5. On 11 December 2020, Mr Annetts delivered a truckload of rocks to the property, which were to be used for landscaping.  Mr Robison allegedly led Mr Annetts to a spot on the property where a retaining wall was to be built.  In doing so, Mr Robison led Mr Annetts across the damaged manhole cover.  The lid collapsed, one of Mr Annett’s legs was trapped in the stormwater drain, and he suffered injuries to both legs. 

6. As a result of complications which beset the injury to Mr Annetts’ left leg, he underwent an amputation of part of that leg on 30 December 2020.  Other injuries and loss consequent upon those injuries are alleged.

7. The pre-proceeding steps prescribed by the Personal Injuries Proceedings Act 2002 were undertaken and completed and on 25 August 2023 the current proceedings commenced. 

8. Mr Annetts claimed that his injuries were caused by Mr Robison’s negligence.  Damages are claimed under several heads.

9. Mr Robison is insured by QBE Insurance (Australia) Limited, who instructed lawyers to complete the pre-proceeding steps and to file a Notice of Intention to Defend and Defence.

10. A Notice of Intention to Defend and a Defence to the Statement of Claim were filed on 5 October 2023.

11. On 24 October 2023, Mr Annetts died from causes unrelated to the accident.   

1. Mr Annetts left a will made on 6 November 1991 where he appointed his wife, Pamela Dorothy Annetts, as his executrix and trustee and left all his estate to her.  There were provisions which operated if Mrs Annetts died before Mr Annetts, but she survived him. Probate has not been sought as the estate is small.

2. On 22 April 2025, Mrs Annetts applied to be substituted for her husband as plaintiff, sought leave to proceed and other ancillary orders.  That application was listed for hearing on 15 May 2025.

3. On 14 May 2025, my Associate received correspondence from Mrs Annetts’ solicitors sent with the approval of the solicitors for Mr Robison,[1] expressing that:

   (a)both parties consented to orders in terms of an enclosed draft; and

   (b)to the extent that the making of the orders required the exercise of judicial discretion, both parties urged the making of the orders and sought to have the application considered without oral argument.  Written submissions on behalf of Mrs Annetts were provided, together with advice that what was said in those submissions was not contentious.

   [1]Instructed by QBE Insurance (Australia) Limited.

4. On 15 May 2025, I made orders consistent with the draft in these terms:

   1.Leave be granted pursuant to r 72(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for further steps in the proceeding to be taken in accordance with the following orders and directions of the Court.

   2.Pursuant to r 72(2) of the UCPR “Pamela Dorothy Annetts, as Executor of the Estate of Douglas James Annetts” be substituted as Plaintiff.

   3.Pursuant to r 375 of the UCPR, leave be granted for the Plaintiff to file and serve an Amended Claim and Amended Statement of Claim (ASOC) substantially in the terms of exhibit “LJP-01 and LJP-02” to the Affidavit of Luke John Pearcy filed 13 May 2025.

   4.Subject to any further or other order or direction of the Court:

   (a)   The Plaintiff file and serve the Amended Claim and the ASOC within seven days;

   (b)   The Defendant file and serve an Amended Defence to the ASOC within 14 days of service of the ASOC (“the Amended Defence”);

   (c)   The Plaintiff file and serve any Reply to the Amended Defence within 14 days of service of the Amended Defence;

   (d)  The Plaintiff file and serve an Amended Statement of Loss and Damage within 14 days of the service of the Amended Defence;

   (e)   The Plaintiff file and serve any further List of Documents, and the Defendant file and serve any further Statement of Expert and Economical Evidence, within 14 days of the service of the Amended Defence;

   (f) The parties are to participate in a mediation which complies with r 553 of the UCPR, by no later than 30 June 2025;

   (g)   Each party have liberty to apply upon giving the other party no less than three clear business days’ notice in writing.

5.The costs of this Application be costs in the cause.

1. These are my reasons for making these orders.

2. As observed, the parties propose that the application be decided without oral hearing.  Rules 489 and 490 of the Uniform Civil Procedure Rules 1999 are as follows:

   “489 Proposal for decision without oral hearing

   (1)   A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

   (2)   If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—

   (a)under rule 491, the court considers it inappropriate to do so; or

   (b)under rule 494, the respondent requires an oral hearing; or

   (c)under rule 495, the applicant abandons the request for a decision without an oral hearing; or

   (d)the Chief Justice or Chief Judge suspends the operation of this rule by direction.

   490Procedure for making application

   (1)   If the applicant proposes an application be decided without an oral hearing, the application must—

   (a)include a notice in the approved form; and

   (b)be accompanied by a draft order and written submission in support.

   (2)   The registrar must set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.

   (3)   If the application is made without notice to a party—

   (a)subrule (2) and rules 492 to 495 do not apply; and

   (b)the registrar must set as the date for deciding the application the first date convenient to the court.

   (4)   If the parties resolve all or part of the application before the date for deciding the application, each party must give the court written notice of the extent to which the application is resolved and the orders the parties have agreed to seek.”

3. The structure of r 489 is such that the application should be decided without oral hearing, if that is proposed by the applicant, unless one or more of the four circumstances appearing in r 489(2) are present.[2]

   [2]Re Chambers (deceased) (2023) 16 QR 367 at [17]-[23].

4. Mr Robison joins with Ms Annetts in seeking to have the matter dealt with without oral hearing, so r 489(2)(b) has no application; neither do r 489(2)(c) or (d). The sole question is whether the Court considers it inappropriate to deal with the matter on the written submissions.

5. Given that:

   (a)the factual context of the application is not contentious;

   (b)there are no complicated questions of law; and

   (c)the parties both urge to have the matter dealt with without oral hearing, it is not “inappropriate” to do so, subject to what I say below about procedural issues.

6. By r 489 an applicant may “propose in the application that it be decided without an oral hearing”. No such proposal is made in the application.

7. Rule 490 prescribes that the application must include a notice in the approved form and must be accompanied by a draft order or written submissions.  The application as filed does not comply with those requirements.  Rules 492 and 493 also include various prescribed procedures which have not been complied with.

8. The failure to comply with the rules is an irregularity which does not render the application a nullity.[3]  The parties have reached agreement between themselves and, consistently with the philosophy enshrined by r 5, have acted to avoid expense.  In those circumstances, any irregularity ought to be waived, and I do so.

   [3]Uniform Civil Procedure Rules 1999, r 371.

9. Rules 72 and 73 of the UCPR provide as follows:

   “72   Party becomes bankrupt, person with impaired capacity or dies during proceeding

   (1)   If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if—

   (a)the court gives the person leave to proceed; and

   (b)the person follows the court’s directions on how to proceed.

   (2)   If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, order the trustee or personal representative of the party or, if a deceased party does not have a personal representative, someone else, to be included or substituted as a party for the original party.

   (3)   Subrules (1) and (2) apply subject to the Bankruptcy Act 1966 (Cwlth).

   (4)   An application for an order under this rule must be served on all persons who could be affected by the order.

   (5)   The court may, before it makes an order under this rule because a party has died, require notice to be given to—

   (a)an insurer of the deceased who has an interest in the proceeding; and

   (b)any other person who has an interest in the estate.

   (6)   An insurer or other person given notice is entitled to be heard on the hearing of the application.[4]

   (7)   If the court orders that a person be included as a defendant, the person must file a notice of intention to defend within the time set by the court in the order.

   (8)   If—

   (a)a deceased party does not have a personal representative and the court orders that a person be included or substituted as a party for the deceased; and

   (b)a grant of representation is subsequently made;

   [4]Mr Robisons’s lawyers are instructed by the insurer.

   the person must, as soon as practicable, deliver to the deceased’s personal representative a copy of all process and documents in the person’s possession relating to the proceeding.

   73No substitution order after death of plaintiff or applicant

   (1)   This rule applies if—

   (a)a plaintiff or applicant dies and the cause of action survives the death; and

   (b)no order is made substituting another person for the deceased.

   (2)   The court, on application by a party or by a person to whom the benefit of the cause of action passes on the death, may order that, unless an order for substitution is made within a specified time, the proceeding be dismissed on a specified basis, including, for example, with costs against a party, person or estate connected with the proceeding.

   (3)   A copy of the application must be served on the deceased’s personal representative (if any) unless the court orders otherwise.”

10. Mr Robison does not suggest that the cause of action died with Mr Annetts.  That position seems justified.[5]  Mrs Annetts is the executor and trustee of Mr Annetts’ estate.  She is the sole beneficiary of the estate.  She is the logical person to take over the conduct of the proceedings and an order should be made in her favour.

    [5]Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290; Foppli v Public Trustee [1970] WAR 73, and the cases discussed in those cases.

11. The remaining orders that are proposed and directions do not involve the exercise of discretion.  The parties agree on the directions and they should be made.

12. For those reasons I make the orders given in paragraph [15] of these reasons.