Eagle Boys Dial-A-Pizza Australia Pty Ltd v Williams
[2015] QDC 311
•8 December 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Eagle Boys Dial-A-Pizza Australia Pty Ltd v Williams & Anor [2015] QDC 311
PARTIES:
Eagle Boys Dial-A-Pizza Australia Pty Ltd
(plaintiff)
v
Williams & another
(defendant)
FILE NO/S:
448/14
DIVISION:
Civil
PROCEEDING:
Application On the Papers
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
8 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
On the Papers
JUDGE:
Horneman-Wren SC DCJ
ORDER:
The application is dismissed.
CATCHWORDS:
RENEWAL OF CLAIM –where plaintiff filed claim and statement of claim against the defendants for action arising out of agreement –where judgment entered on defendant –where plaintiff unsuccessful in serving claim on second defendant –where plaintiff seeks to renew claim for a period of twelve months to locate second defendant –whether renewal of claim should be allowed –where renewal of claim not allowed –where plaintiff failed to comply with r 490 UCPR
Uniform Civil Procedure Rules 1999 (Qld), r 24, r 490
SOLICITORS:
Elliot May of Elliott May Lawyers for the Plaintiff.
No Appearance for the Defendants.
On 11 November 2015, the applicant plaintiff filed a notice proposing an application without oral hearing in which it gave notice that the plaintiff was applying to the Court for the following orders:
(1) that the claim and statement of claim be renewed for a period of 12 months under rule 24 of the Uniform Civil Procedure Rules 1999, and
(2) that there be no order as to costs.
On the face of the notice proposing the application without an oral hearing, it identified that the plaintiff intended to rely on the hearing of the application upon the affidavit of James Sean Whittle, sworn 10 November 2015. Mr Whittle’s, affidavit was also filed on 11 November 2015.
In my view, there are two reasons why the application, at least in its present form, ought be refused.
First is that the plaintiff has failed to comply with the procedural requirements of rule 490 of the UCPR. Rule 490(1) provides that if the applicant proposes an application be decided without an oral hearing, the application must:
(a) include a notice in the approved form, and
(b) be accompanied by a draft order and written submissions in support.
The applicant plaintiff has failed to comply with sub-rule 490(1)(b). No written submissions or draft order accompanied the application. The importance of an appropriately drawn draft order and written submissions being filed with the application is made evident in this particular case. That is because the application seeks the renewal of the claim pursuant to rule 24 of the UCPR. Sub-rule (1) of rule 24 provides that a claim remains in force for a period of one year starting on the day on which it was filed. Sub-rule (2) provides that if the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant, or that there is another good reason to renew the claim, the registrar may renew the claim for further periods of not more than one year at a time starting on the day the claim would otherwise end.
Sub-rule (3) provides that the claim may be renewed whether or not it is in force and sub-rule (4) provides that the Court’s leave must be obtained before a claim may be renewed by a registrar for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed. The claim in this matter was originally filed on 10 February 2014. Therefore, pursuant to sub-rule (1) of rule 24, it remained in force until 10 February 2015. Because there are no submissions, there is no explanation as to why this matter has been brought before the Court rather than a registrar.
On its face, there would seem to be no reason for it to be before the Court because the renewal of the claim will not result in any part of the renewed period falling on or after the fifth anniversary of the date on which it was originally filed, that being 10 February 2014. This is the second reason why the application should be refused.
Because of the failure of the plaintiff to comply with the rules in terms of providing a draft order and submissions in relation to the application in circumstances where in which, prima facie, it is a matter for the registrar to renew this claim, not the Court, I am of the view that the application ought be dismissed and I do so.
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