Bruce v Palazzi

[2006] QDC 314

[2006] QDC 314

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D85 of 2006

DOUGLAS BRUCE

Applicant

and

GEOFFREY PALAZZI and

JULIANN PALAZZI

Respondents

SOUTHPORT

..DATE 21/08/2006

ORDER

Catchwords:

Uniform Civil Procedure Rules - r161, r163, r444 -
refusal of guillotine order for striking out of statement of claim in default of compliance with an order for particulars of it sought at same time as the initial order for particulars is sought - plaintiff did not appear on application.

HIS HONOUR: This is an application which proceeded in the absence of the Plaintiff who was not here when called not only for Further and Better Particulars under Rule 161 of the Statement of Claim, but also, "in default", for the striking out of it and judgment under Rule 163. Although Ms Van Hoeyen for the Applicant Defendants tells the Court that she is aware of occasions when the Court at the time of making an order for particulars also makes a guillotine order under Rule 163, I am not aware myself of such orders having been made. She offered to supply a copy of a Judge's reasons in another matter, which mentioned the precedent she had in mind, but did not follow it.

I would require very special circumstances before being prepared to consider accompanying first orders for particulars with a guillotine order of the kind sought under Rule 163.

In my view experience has shown that guillotine orders are apt to cause trouble and they should be made with great circumspection given the dire consequences that sometimes ensue, which probably no-one ever foresaw or intended. See, for example, Bailey v Marinoff (1971) 125 CLR 529; KGK Construction Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 OdR 13.

The request here has been set out in the form of a "Rule 444" letter dated the 11th of July 2006. Its reference to Rule 444 is in the form of one to "chapter 11 part 8 of the Uniform Civil Procedure Rules", which perhaps does not send a signal, that the average practitioner would immediately understand; nonetheless, that is the formula which Rule 444 (1)(f) approves. My impression is that the common practice is to give the number of the rule.

There has been no response whatever to the Rule 444 letter.  The non-appearance of the plaintiff today is somewhat curious.  His delay is only a matter of a few weeks.  Mr Patane's affidavit indicates service by post of a letter dated 27th July 2006 without indicating what the date of posting was.

...

HIS HONOUR:    I would assume that Mr Patane is conveying to the Court that posting occurred on or very soon after that day, so that the plaintiff has had sufficient time.

...

HIS HONOUR:  Mr Patane's letters used the plaintiff's address for service as shown on the claim.  There is no occasion today for the Court to go into the appropriateness of every component of the request for particulars.  One would have expected the plaintiff to make some effort at compliance.

I am not prepared to make any Rule 163 Order today, but to indicate the Court's concurrence with the defendants' attitude that the Rules ought to be complied with, I propose other arrangements including a penal costs order against the plaintiff. If there is some injustice about that or anything else which I order and if something has gone wrong leading to his none appearance before the Court today, Mr Bruce will have the ordinary rights of a person behind whose back orders are made to approach the Court to try to have them changed.

The orders are as follows:

(1)Pursuant to Rule 161 of the Uniform Civil Procedure Rules 1999 that the plaintiff provide the defendants with the Further and Better Particulars of the Statement of Claim contained in the request of Patane Lawyers to Bennett and Devery in the letter dated 11 July 2006 within seven days of the date of service of a copy of this order.

(2)Adjourn the further hearing of the application to the 4th of September 2006 for the purpose of considering whether if the plaintiff fails to comply with order (1) above it should be ordered that the Statement of Claim be struck out and judgment be entered by the registrar in favour of the defendants pursuant to Rule 163 of the Uniform Civil Procedure Rules.

(3)That the plaintiff pay the defendant's costs of and incidental to this application to be assessed on an indemnity basis.

(4)Liberty to apply generally.

(5)Liberty to the defendants to delist the further hearing should satisfactory particulars be supplied.

That is all set out in a document which I will initial.  I make an order as per the initialled draft.

...

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