Bellis v Qld Corrective Services Com - [1998] QSC 247

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  Writ No.940 of 1995
Before the Hon. Mr Justice Mackenzie
[Bellis v Qld Corrective Services Com.]
BETWEEN:
  STEPHEN JOHN BELLIS
  Plaintiff
AND:
  THE QUEENSLAND CORRECTIVE SERVICES
  COMMISSION
  Defendant

Writ No.3347 of 1997
BETWEEN:
  STEPHEN JOHN BELLIS
  Plaintiff
AND:
  STATE OF QUEENSLAND

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment delivered 6 November 1998
CATCHWORDS: CIVIL PROCEDURE - correct party served with original writ - defendant not served on advice from solicitor - leave to renew writ - second writ issued erroneously naming defendant - leave to substitute correct defendant.

Rules of The Supreme Court of Queensland O.9 r.1, O.32 r.1(1) - (3)
Jones v Jebras & Hill (1968) Qd.R13
Dempsey v Dorber(1990) 1 Qd.R 418
Jiminez v Jayform Contracting Pty Ltd (1993) 1 Qd.R 610
Hayward v Darling Downs Aircraft Services Pty Ltd (1993) 2 Qd.R 153
Honnery v McKenzie (Court of Appeal, unreported, 6 December 1997, Appeal No.12 of 1997)
Thomas v The State of Queensland (unreported, Master White, 9 September 1991, No.1193 of 1991)
Harstoff v Allen (1967) Qd.R 211
Lynch v Keddell (1985) 2 Qd.R103
Lynch v Keddell (No 2) (1990) 1 Qd.R10
Teys Bros. (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd (1990) Qd.R288
The “Al Tawwab” (1991) 1 Lloyd’s Rep. 201
“AA” - “JC” Inclusive v Hickey (1996) 70 ALJR 385

Counsel:Mr C Newton for the plaintiff
Mr K Dorney QC for the defendant

Solicitors:Carew & Co for the plaintiff
Crown Law for the defendant

Hearing date: 28 October 1998

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane Writ No.940 of 1995
Before the Hon. Mr Justice Mackenzie
[Bellis v Qld Corrective Services Com.]
BETWEEN:

STEPHEN JOHN BELLIS
Plaintiff
AND:

THE QUEENSLAND CORRECTIVE SERVICES
COMMISSION
Defendant
Writ No.3347 of 1997

BETWEEN:

STEPHEN JOHN BELLIS
Plaintiff

AND:

STATE OF QUEENSLAND
REASONS FOR JUDGMENT - MACKENZIE J.

Judgment delivered 6 November 1998

The complementary applications dealt with in these reasons arise from unusual circumstances. The applicant plaintiff, who is a psychologist by training, commenced employment as a community corrections officer with the Queensland Corrective Services Commission in 1989. From 1991 until 1994 he was aggrieved at what he perceived to be victimisation by his superiors. In May 1994, he suffered symptoms which resulted in his ceasing work. On 13 July 1995 a Medical Assessment Tribunal constituted under the Workers’ Compensation Act decided that he had an adjustment disorder with depressed mood and had a permanent partial disability in the lower range of moderate severity. He received a disability settlement of about $18,500 in consequence of this decision which together with the sum of weekly benefits previously paid and other payments for expenses amounted to a total sum in excess of $57,000 in payments under the Act.
In April 1997, he instructed his present solicitors to commence action for damages for personal injuries (in the nature of nervous stress) sustained during the course of his employment. Writ No.3347 of 1997 (“the second writ”)…

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.

Continue reading Bellis v Qld Corrective Services Com

Details

AGLC: Bellis v Qld Corrective Services Com [1998] QSC 247
Case: [1998] QSC 247
Decision Date: 6 November 1998

CaseChat Overview and Summary

The Supreme Court of Queensland was asked to determine the proper defendant in two related cases brought by Stephen John Bellis against the Queensland Corrective Services Commission (QCSC) and the State of Queensland. Bellis, a former community corrections officer, sought damages for personal injuries sustained during his employment. The court was required to decide whether the writs should be renewed or amended to reflect the correct defendant. The plaintiff had initially instructed one set of solicitors in 1995 to issue a writ against QCSC but did not proceed due to legal advice regarding the prospects of success. Subsequently, in 1997, he instructed another set of solicitors to issue a writ against the State of Queensland, which was incorrect. The court considered whether there was "good reason" to renew the first writ and whether the second writ could be amended to correctly name QCSC as the defendant.

The court found that while no effort was made to serve the first writ, the plaintiff had not demonstrated "good reason" to renew it as no specific prejudice was pointed to by the defendant. Regarding the second writ, the court held that the plaintiff had made a genuine mistake in naming the State of Queensland as the defendant instead of QCSC. The court concluded that the mistake was not misleading and that it was just to permit the substitution of the correct defendant under Order 32 r.1 of the Rules of the Supreme Court. The court granted the application to substitute QCSC as the defendant and allowed the plaintiff to amend the writ and statement of claim accordingly.

The final orders were that the summons to renew the first writ was dismissed with costs, and the second writ was amended to substitute QCSC as the defendant, with the plaintiff granted leave to amend the writ and statement of claim. The defendant's costs of the application were to be paid by the defendant.

Orders