Cameron v Booij - [2006] QDC 135

[2006] QDC 135

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3629 of 2005

MARGARET SOK LENG CAMERON	Plaintiff
and
HANS BOOIJ	First Defendant
and
DUPPYHIGH LTD ACN 061 273 381	Second Defendant

BRISBANE

..DATE 28/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules, r 112(1)(f),
r 223, r 443, r 444, r 445 - costs argument - whether
plaintiff's application for order for disclosure was filed prematurely - it was filed before the date when the defendants had said their list would be provided, but no list was forthcoming until the eve of the return date - rule 444 held inapplicable, although the parties purported to follow its procedures - defendants not justified in sending r 445 letter (which miscarried) to the email address of the plaintiff's solicitors as it had not been notified as an address for service

HIS HONOUR: This application filed on the 3rd of April 2006 for disclosure under rule 223 resolved into what might have seemed an unexciting contest about costs because the plaintiff now has the list of documents which she sought. That arrived yesterday, the 27th of April, notwithstanding the defendants' solicitors having written, in a letter of the 31st of March 2006, that it would be forthcoming in 14 days. Mr Harrigan, representing the defendant, contends that the application was filed prematurely. It was certainly filed before the foreshadowed date of provision of the list of documents, but one interpretation of subsequent events was that the filing was justified and may have been the catalyst needed to get the list actually produced.

There has been another aspect raised by Mr Harrigan in relation to Rule 444, the importance of which was emphasised by the Court of Appeal in Meredith v Palmcam Pty Ltd [2000] QCA 113 as Judge McGill noted in Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDC 196 at paragraph [4]. Rule 444 does not, in express terms, deal with applications like the present, as the Court of Appeal acknowledge in BTU Group v Noble Promotions Pty Ltd [2002] QCA 505. Reference to Rule 443 is necessary. There one finds particular reference, for example, to applications for further and better particulars under Rule 161.

The parties embarked on Rule 444 procedures, which is to be commended for the reasons noted by Judge McGill. On the assumption that they did apply, Mr Harrigan submits that he sent a timely Rule 445 letter by email on the last day of the period which had been allowed, the minimum one possible of three days. Although that email may have been sent in time it appears that difficulties of one kind or another meant that it was some considerable number of days before the plaintiff's solicitor was able to open and read the communication. That doesn't necessarily import any want of proper diligence on their part. I think it is notorious that from time to time providers encounter problems in providing their users with an efficient email service and that delays of…

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 Cameron v Booij

Details

AGLC: Cameron v Booij [2006] QDC 135
Case: [2006] QDC 135
Decision Date: 28/04/2006

CaseChat Overview and Summary

In Cameron v Booij, the plaintiff, Margaret Sok Leng Cameron, sought an order for disclosure under the Uniform Civil Procedure Rules. The defendants, Hans Booij and Duppy High Ltd, contested the application, arguing it was filed prematurely. The case was heard in the District Court of Queensland. The court was required to decide whether the plaintiff's application for disclosure was premature and whether the defendants were justified in sending a Rule 445 letter to the plaintiff's solicitors' email address, which was not listed as an address for service.

The court found that the plaintiff's application for disclosure was not premature, as it was filed before the date when the defendants had promised to provide the list of documents, but no list was forthcoming until the eve of the return date. Although Rule 444 was not directly applicable, the court noted that the parties had followed its procedures. However, the court held that the defendants were not justified in sending the Rule 445 letter to the email address of the plaintiff's solicitors, as it had not been notified as an address for service. The court concluded that only service addresses notified in a claim, notice of intention to defend, and the like, could be safely used. The plaintiff was entitled to the order for costs she sought, and the defendants were ordered to pay the plaintiff's costs of and incidental to the application to be assessed.

Orders