Day v Woolworths Limited (No 2) - [2019] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:

Day v Woolworths Limited & Ors (No 2) [2019] QSC 93

PARTIES:

OLGA DAY

(plaintiff)

v
WOOLWORTHS LIMITED
ACN 000 014 675

(first defendant)

CPM AUSTRALIA PTY LTD
ACN 063 244 824

(second defendant)

RETAIL ACTIVATION PTY LTD
ACN 111 852 129

(third defendant)

FILE NO:

No 6016 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

9 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 January 2019
Further written submissions were filed, the last being filed on 25 January 2019

JUDGE:

Davis J

ORDER:

1.   The application to amend the application filed 13 November 2018 is dismissed.

2.   Paragraphs 2 and 3 of the application filed 13 November 2018 are dismissed.

3.   The plaintiff pay the first defendant’s costs of the proceedings, including all reserved costs and the costs of the application on the standard basis.

4.   The plaintiff pay the second and third defendants’ costs of the proceedings, including all reserved costs on the standard basis except the costs of the application which are to be paid on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where the plaintiff’s claim became permanently stayed because of her refusal to submit to medical examinations – where the plaintiff’s conduct led to the effective failure of her claim – whether indemnity costs should be awarded against the plaintiff

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the plaintiff applied for leave to amend her application – whether the proposed amendments could be added to the application

PROFESSIONS AND TRADES – LAWYERS – RIGHTS AND PRIVILEGES – RIGHTS OF AUDIENCE – BARRISTERS – where the plaintiff submits that the conduct of the barristers was such as they should be disqualified from appearing – whether the conduct of the barristers does disqualify them

Personal Injuries Proceedings Act 2002
Uniform Civil Procedure Rules 1999, r 367, r 375, r 681, r 703

Bell Lawyers Pty Ltd v Pentelow [2018] HCA Trans 264, cited
Colgate Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225, cited
Day v Humphrey & Ors [2017] QCA 104, cited
Day v Humphrey & Ors [2019] QSC 38, cited
Day v Woolworths Limited & Ors [2018] QCA 105, cited
Day v Woolworths Limited & Ors [2016] QCA 321, cited
Day v Woolworths Limited & Ors [2016] QCA 337, cited
Day v Woolworths Limited & Ors [2018] QSC 266, cited
Day v Woolworths Limited & Ors [2018] HCASL 253, cited
Day v Woolworths Limited & Ors [2019] QSC 40, cited
Giannarelli v Wraith (1988) 165 CLR 543, cited
Grimwade v Meagher [1995] 1 VR 446, applied
Kooky Garments Limited v Charlton [1994] 1 NZLR 587, cited
London Scottish Benefit Society v Chorley (1884) 13 QBD 872, cited
Pentelow v…

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.

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Details

Case: [2019] QSC 93
Decision Date: 9 April 2019

CaseChat Overview and Summary

Day, the plaintiff, filed a claim against Woolworths Limited, the first defendant, and two others, the second and third defendants, in the Supreme Court of Queensland. The plaintiff sought damages for personal injuries sustained in an incident at a Woolworths store. The claim was permanently stayed due to the plaintiff's refusal to submit to medical examinations. This refusal resulted in the failure of the plaintiff's case. The court was required to decide whether indemnity costs should be awarded against the plaintiff, considering her unreasonable conduct and delinquency in the proceedings. Additionally, the court needed to determine whether the plaintiff could amend her application, and whether the conduct of the plaintiff's barristers warranted their disqualification from appearing.

The court held that the plaintiff's refusal to undergo medical examinations was unreasonable and amounted to delinquency, justifying the awarding of indemnity costs. The court dismissed the application to amend the plaintiff's application, finding that the proposed amendments could not be added. The court also rejected the plaintiff's argument regarding the conduct of the barristers, determining that their conduct did not warrant disqualification. The plaintiff was ordered to pay the first defendant's costs on the standard basis and the second and third defendants' costs on the standard basis, except for the costs of the application, which were to be paid on the indemnity basis.

The court ordered that the application to amend the application filed on 13 November 2018 be dismissed, and that paragraphs 2 and 3 of that application be also dismissed. The plaintiff was directed to pay the first defendant’s costs of the proceedings, including all reserved costs and the costs of the application on the standard basis. Additionally, the plaintiff was ordered to pay the second and third defendants’ costs of the proceedings, including all reserved costs on the standard basis, except for the costs of the application which were to be paid on the indemnity basis.

Orders

Orders of the court

1. The application to amend the application filed 13 November 2018 is dismissed.

2. Paragraphs 2 and 3 of the application filed 13 November 2018 are dismissed.

3. The plaintiff pay the first defendant’s costs of the proceedings, including all reserved costs and the costs of the application on the standard basis.

4. The plaintiff pay the second and third defendants’ costs of the proceedings, including all reserved costs on the standard basis except the costs of the application which are to be paid on the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Day v Woolworths Limited & Ors (No 2) [2019] QSC 93
PARTIES:	OLGA DAY (plaintiff) v WOOLWORTHS LIMITED ACN 000 014 675 (first defendant) CPM AUSTRALIA PTY LTD ACN 063 244 824 (second defendant) RETAIL ACTIVATION PTY LTD ACN 111 852 129 (third defendant)
FILE NO:	No 6016 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 January 2019 Further written submissions were filed, the last being filed on 25 January 2019
JUDGE:	Davis J
ORDER:	1. The application to amend the application filed 13 November 2018 is dismissed. 2. Paragraphs 2 and 3 of the application filed 13 November 2018 are dismissed. 3. The plaintiff pay the first defendant’s costs of the proceedings, including all reserved costs and the costs of the application on the standard basis. 4. The plaintiff pay the second and third defendants’ costs of the proceedings, including all reserved costs on the standard basis except the costs of the application which are to be paid on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – where the plaintiff’s claim became permanently stayed because of her refusal to submit to medical examinations – where the plaintiff’s conduct led to the effective failure of her claim – whether indemnity costs should be awarded against the plaintiff PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the plaintiff applied for leave to amend her application – whether the proposed amendments could be added to the application PROFESSIONS AND TRADES – LAWYERS – RIGHTS AND PRIVILEGES – RIGHTS OF AUDIENCE – BARRISTERS – where the plaintiff submits that the conduct of the barristers was such as they should be disqualified from appearing – whether the conduct of the barristers does disqualify them Personal Injuries Proceedings Act 2002 Uniform Civil Procedure Rules 1999, r 367, r 375, r 681, r 703 Bell Lawyers Pty Ltd v Pentelow [2018] HCA Trans 264, cited Colgate Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225, cited Day v Humphrey & Ors [2017] QCA 104, cited Day v Humphrey & Ors [2019] QSC 38, cited Day v Woolworths Limited & Ors [2018] QCA 105, cited Day v Woolworths Limited & Ors [2016] QCA 321, cited Day v Woolworths Limited & Ors [2016] QCA 337, cited Day v Woolworths Limited & Ors [2018] QSC 266, cited Day v Woolworths Limited & Ors [2018] HCASL 253, cited Day v Woolworths Limited & Ors [2019] QSC 40, cited Giannarelli v Wraith (1988) 165 CLR 543, cited Grimwade v Meagher [1995] 1 VR 446, applied Kooky Garments Limited v Charlton [1994] 1 NZLR 587, cited London Scottish Benefit Society v Chorley (1884) 13 QBD 872, cited Pentelow v…