Arthurell v Ryans Mulching Queensland Pty Ltd - [2017] QDC 74

DISTRICT COURT OF QUEENSLAND

CITATION:

Arthurell v Ryans Mulching Queensland Pty Ltd [2017] QDC 74

PARTIES:

ARTHURELL
(appellant)

v

RYANS MULCHING QUEENSLAND PTY LTD
(respondent)

FILE NO/S:

37/16

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

3 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2017

JUDGE:

Devereaux SC DCJ

ORDER:

I will hear from the parties as to the precise form of orders in accordance with these reasons.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – GENERALLY – appeal from interlocutory decision by Magistrate – whether the Magistrate correctly decided a letter sent by the plaintiff’s solicitor to the defendant’s solicitor, dated 26 June 2015, was not a step – whether the Magistrate correctly decided not to declare a letter dated 11 May 2016 an effectual step, under r 371 UCPR - whether notice was required prior to issuing a Notice to Admit Facts – whether the Magistrate conducted the hearing in “a fair and judicial manner”

Magistrates Court Act 1921 (Qld) s. 45

The Rules of the Supreme Court 1901 (Qld) O.93 r.17

Uniform Civil Procedure Rules (Qld) r. 189, r. 221, r. 371, r. 389, r. 765

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272

Bates v Qld Newspapers P/L & Anor [2001] QSC 83

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

House v The King (1936) 55 CLR 499

New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228

Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444

Pickering v McArthur (No 2) [2010] QDC 90

Ure v Robertson & Ors [2016] QSC 210

Ure v Robertson [2017] QCA 20

Uzsoki v McArthur [2011] QDC 60

COUNSEL:

Dr C. Jensen for the appellant

Mr J. Ivanisevic for the respondent

SOLICITORS:

Dr Craig Jensen Lawyers for the appellant

HopgoodGanim Lawyers for the respondent

This is an appeal from an interlocutory decision by a magistrate at Beaudesert on 17 October 2016. The claim, filed on 13 March 2014, is for damages for breach of contract, resulting from the delivery by the defendant of a load of mulch which allegedly contained asbestos. A defence was filed on 9 May 2014. Among other things, the defendant denies there was asbestos in any mulch it supplied. On 28 May 2014 the reply was filed, closing the pleadings. During September 2014 both parties made disclosure.

Relevant actions taken by the parties since disclosure included the following. On 26 June 2015, the plaintiff’s solicitors wrote to the defendant’s solicitors disclosing certain documents which, it is conceded, related only to the assessment of damages. On 11 May 2016, the plaintiff’s solicitors wrote to the defendant’s solicitors disclosing documents. On 6 July 2016, the solicitors for the plaintiff issued a notice to admit facts. By letter of 7 July 2016 the solicitors for the defendant replied that the plaintiff was unable to deliver…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QDC 74
Decision Date: 3 April 2017

CaseChat Overview and Summary

The appeal by the plaintiff, Arthurell, against the defendant, Ryans Mulching Queensland Pty Ltd, was heard in the District Court of Queensland. The plaintiff sought damages for an injury sustained while working on the defendant's property. The core issue on appeal was the interpretation and application of certain procedural rules by the Magistrate in the Magistrates Court. Specifically, the plaintiff contested the Magistrate's determination that a letter sent by the plaintiff's solicitor on 26 June 2015 did not constitute a procedural step and that a letter dated 11 May 2016 was not an effectual step under rule 371 of the Uniform Civil Procedure Rules (UCPR). The plaintiff also questioned whether the Magistrate correctly decided that notice was not required before issuing a Notice to Admit Facts, and whether the hearing was conducted in a fair and judicial manner.

The Court of Appeal considered whether the Magistrate correctly interpreted the procedural rules in question. It was determined that the Magistrate's decision regarding the letter of 26 June 2015 was correct, as it did not meet the criteria for a procedural step. Similarly, the letter dated 11 May 2016 was found to not constitute an effectual step under rule 371 UCPR. The Court held that the Magistrate was correct in not requiring notice prior to issuing the Notice to Admit Facts, as the relevant procedural rules did not mandate such notice. The Court also found that the Magistrate conducted the hearing in a fair and judicial manner, without any procedural unfairness.

The Court of Appeal upheld the decision of the Magistrate, finding no grounds for appeal. The Court noted that the procedural steps and the conduct of the hearing were in accordance with the law. The parties were directed to agree on the precise form of orders in accordance with the reasons provided by the Court of Appeal.

Orders

Orders of the court

I will hear from the parties as to the precise form of orders in accordance with these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arthurell v Ryans Mulching Queensland Pty Ltd [2017] QDC 74
PARTIES:	ARTHURELL (appellant) v RYANS MULCHING QUEENSLAND PTY LTD (respondent)
FILE NO/S:	37/16
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	3 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2017
JUDGE:	Devereaux SC DCJ
ORDER:	I will hear from the parties as to the precise form of orders in accordance with these reasons.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – GENERALLY – appeal from interlocutory decision by Magistrate – whether the Magistrate correctly decided a letter sent by the plaintiff’s solicitor to the defendant’s solicitor, dated 26 June 2015, was not a step – whether the Magistrate correctly decided not to declare a letter dated 11 May 2016 an effectual step, under r 371 UCPR - whether notice was required prior to issuing a Notice to Admit Facts – whether the Magistrate conducted the hearing in “a fair and judicial manner” Magistrates Court Act 1921 (Qld) s. 45 The Rules of the Supreme Court 1901 (Qld) O.93 r.17 Uniform Civil Procedure Rules (Qld) r. 189, r. 221, r. 371, r. 389, r. 765 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Bates v Qld Newspapers P/L & Anor [2001] QSC 83 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 House v The King (1936) 55 CLR 499 New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228 Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 Pickering v McArthur (No 2) [2010] QDC 90 Ure v Robertson & Ors [2016] QSC 210 Ure v Robertson [2017] QCA 20 Uzsoki v McArthur [2011] QDC 60
COUNSEL:	Dr C. Jensen for the appellant Mr J. Ivanisevic for the respondent
SOLICITORS:	Dr Craig Jensen Lawyers for the appellant HopgoodGanim Lawyers for the respondent