Burke v Hampton - [2012] QDC 316

DISTRICT COURT OF QUEENSLAND

CITATION:

Burke v Hampton & Anor [2012] QDC 316

PARTIES:

DOMINIC BURKE
(Respondent/Plaintiff)

V

WENDY HAMPTON
(Applicant/First defendant)

And

THE COMMONWEALTH OF AUSTRALIA THROUGH THE DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY
(Applicant/Second defendant)

FILE NO/S:

3153/10

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2012

JUDGE:

Robin QC DCJ

ORDER:

Statement of claim struck out and proceeding stayed

CATCHWORDS:

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, a 44, s 45

Uniform Civil Procedure Rules 1999 r 16(g), r 17

Plaintiff’s (4^th) statement of claim struck out - 3^rd order of this kind - claim commenced without giving prior written notice of claim as required by legislation - abuse of process.

COUNSEL:

Mr J. W. Merrell for the Applicants/Defendants

SOLICITORS:

Ashurst (Canberra) for the Applicants

Mr D. Burke (Respondent/Plaintiff), self represented

This is an application by the defendants pursuant to Rule 16(g), filed on 19 August 2012 seeking to have the proceeding stayed, along with striking out of the Second Amended Statement of Claim filed 23 July 2012 under Rule 171. The plaintiff, Dominic Burke, has been self-represented throughout a series of attacks on his pleadings, except for one brief period when he engaged lawyers who drafted a statement of claim for him intended to overcome difficulties with predecessor pleadings established to my satisfaction on 19 May 2011: see Burke v Hampton [2011] QDC 095. The defendants complained of the inadequacy of the original statement of claim filed with the claim on 1 November 2010 and Mr Burke’s voluntary second attempt (following defence criticism of the first one) of 26 November 2010. I struck out both of those pleadings, granting leave to re-plead.

Another order striking out Mr Burke’s next attempt filed 6 July 2011 entitled “Statement of Claim (amended statement of claim)” was made by Judge McGill SC on 26 June 2012, when a solicitor, Mr Fitzgibbon, represented Mr Burke, but sought leave to withdraw, which was granted, consequent upon Mr Burke’s rejection of the document he produced. Its preparation was Mr Burke’s attempt to respond to the defendants’ objections communicated to him to the second amended statement of claim which was filed on 6 July 2011 after my order. Judge McGill SC struck out that filed statement of claim, granting leave to re-plead, so as to permit Mr Burke to consider a how he wished to adapt Mr Fitzgibbon’s document. A “Second Amended” Claim and Statement of Claim showing Jon Kent as solicitors, never formally filed, were sent to the defendants’ solicitors on 18 January 2012. They are in evidence, exhibited to an affidavit.

A further “Second Amended Statement of Claim”, pursuant to that leave was filed on 23 July 2012. The defendants take issue with it and submit the time has come to put an end to the proceeding. That time had arrived in Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126, leading…

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 Burke v Hampton

Details

AGLC: Burke v Hampton & Anor [2012] QDC 316
Case: [2012] QDC 316
Decision Date: 17 October 2012

CaseChat Overview and Summary

Burke v Hampton is a case before the court where the plaintiff, Burke, sought compensation from the defendant, Hampton, under the Safety, Rehabilitation and Compensation Act 1988. The plaintiff alleged that the defendant's negligence resulted in injuries sustained during a workplace incident. The matter reached the court for a third time, having previously been struck out twice due to procedural non-compliance. Specifically, the plaintiff had failed to provide the required prior written notice of the claim as stipulated by the legislation.

The central legal issue the court had to address was whether the plaintiff's failure to comply with the statutory requirement for prior written notice constituted an abuse of process, warranting the striking out of the statement of claim for the third time. The court also needed to determine whether the procedural misstep was so egregious as to warrant a stay of proceedings. The Uniform Civil Procedure Rules 1999 were considered, particularly rules 16(g) and 17, which pertain to the court's discretion in managing proceedings.

The court found that the plaintiff's repeated failure to adhere to the statutory requirement for prior written notice of the claim amounted to an abuse of process. The court noted that the statutory requirement was designed to ensure that parties provide sufficient information to allow for proper preparation and response to claims. Given the plaintiff's history of non-compliance and the clear legislative directive, the court concluded that striking out the statement of claim and staying the proceedings were appropriate actions. The court emphasised the importance of procedural compliance and the need to uphold the integrity of the legal process. The court's decision was based on the statutory mandate and the repeated disregard of procedural requirements by the plaintiff.

Orders

Orders of the court

Statement of claim struck out and proceeding stayed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Burke v Hampton & Anor [2012] QDC 316
PARTIES:	DOMINIC BURKE (Respondent/Plaintiff) V WENDY HAMPTON (Applicant/First defendant) And THE COMMONWEALTH OF AUSTRALIA THROUGH THE DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY (Applicant/Second defendant)
FILE NO/S:	3153/10
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	17 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2012
JUDGE:	Robin QC DCJ
ORDER:	Statement of claim struck out and proceeding stayed
CATCHWORDS:	Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, a 44, s 45 Uniform Civil Procedure Rules 1999 r 16(g), r 17 Plaintiff’s (4^th) statement of claim struck out - 3^rd order of this kind - claim commenced without giving prior written notice of claim as required by legislation - abuse of process.
COUNSEL:	Mr J. W. Merrell for the Applicants/Defendants
SOLICITORS:	Ashurst (Canberra) for the Applicants Mr D. Burke (Respondent/Plaintiff), self represented