Benzlaw and Associates Pty Ltd v Morrissey

[2005] QDC 267

[2005] QDC 267

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1812 of 2004

BENZLAW AND ASSOCIATES PTY LTD (ACN 071 381 452)	Plaintiff
and
CRAIG MORRISSEY	Defendant

BRISBANE

..DATE 24/08/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 469(4) - dispensing with defendant's signature of request for trial date made conditional upon defendant's failure in this regard continuing for 21 days of the compliance by the plaintiff with an order requiring identification of the documents which it contends it gave the defendant to enable him to prepare BAS and other returns - claim that negligent preparation of the returns exposed the plaintiff to penalties.

HIS HONOUR:  The plaintiff seeks that the Court dispense with the defendant's signature of the request for trial date.  I have been anxious to take a practical approach of ensuring that the defendant is not forced to trial without being fairly apprised of the case to be met.  It is an unusual one, in my experience at least, in which the defendant, who is an accountant, is claimed to have negligently prepared business activity statements with the consequence that the plaintiff incurred substantial penalties imposed by the Commissioner of Taxation.  It seeks to recover the amount of those from the defendant.

What is at issue, so far as the defendant is concerned, and justifies his failure to signify that the matter is ready for trial, is identification of the documents which the plaintiff will contend were made available to the defendant for purposes of his doing his work.

In a process of providing further particulars the plaintiff has supplied in some detail particulars of entries in the BAS documentation which it is claimed were wrong.  I sympathise with the defendant's position that the case he faces has not been completed by identification of the material which it is going to be contended he had and on the basis of which he should have prepared better BAS documents. 

There was, in an earlier response to the request for particulars, a reference to "the provision of documentation by Mr Bennelli to Mr Morrissey to prepare BAS and annual returns for the plaintiff," which in context looks adequate since it is stating one of the circumstances from which a retainer is argued to be implied. 

Whether or not the defendant could have formulated his request for particulars better, I think that he is justified in asserting that from his point of view the matter is not ready for trial while there is no certainty about the plaintiff's contentions as to what documentation he had.  There has been disclosure, and in that connection a list which one presumes would include all documents potentially in that category has been supplied. 

The Court proposes to advance the matter by making the following orders:

(1)That the plaintiff file and serve an affidavit of Mr Bennelli identifying (by reference to disclosure if appropriate) each and every document which it contends was supplied to the defendant for the purposes of preparing Business Activity Statements and the like for the plaintiff;

(2)That the defendant's signature of Request for Trial Date be dispensed with if the defendant has not signed such a request within 21 days of compliance with paragraph 1 above;

(3)Costs to be costs in the cause.

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