Gillies v Dibbetts - [2000] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION: Gillies v Dibbetts [2000] QCA 156

PARTIES:
KAROLYN GILLIES
(plaintiff/appellant)
v
HANS EMILE LUDOLF DIBBETTS and
JOANNA WILHELMINA DIBBETTS
(first defendants/first respondents)

JASON MARK THURLBY and
RUTH ELIZABETH THURLBY
(second defendants/second respondents)

MERCANTILE MUTUAL INSURANCE AUSTRALIA LTD ACN 000 456 799
(second third parties)

FILE NO/S: Appeal No 8722 of 1999
SC No 6522 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 5 May 2000

DELIVERED AT: Brisbane

HEARING DATE: 7 March 2000

JUDGES:
McPherson and Thomas JJA, Wilson J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal allowed.
(1) Order that the orders of the primary judge be set aside;
(2) Order that the amended plaint be renewed until 30 June 2000;
(3) Direct that the appellant re-serve the amended plaint on the first and second respondents;
(4) Direct that within 28 days of being served with the amended plaint pursuant to s 185 of the Workers’ Compensation Act 1990 WorkCover Queensland may apply to have service upon it set aside;
(5) Direct that the appellant serve a copy of the order of this Court on WorkCover Queensland at the same time as the amended plaint is served on it;
(6) Order that at the expiration of 28 days from the filing of an affidavit of service upon WorkCover Queensland or upon the determination in its favour of any application by it to have service upon it set aside (whichever is the later), steps purportedly taken since 28 January 1997 be deemed valid and effectual as though they had been taken after service of the amended plaint on WorkCover Queensland;
(7) Order that the appellant pay the costs of the first and second respondents of and incidental to the applications before the primary judge to be assessed on the standard basis;
(8) Order that the first and second respondents pay the appellant’s costs of the appeal;
(9) Order that the first and second respondents be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.

CATCHWORDS:
PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – service of plaint – requirement for service on the Workers’ Compensation Board of Queensland under Workers’ Compensation Act 1990 – service of amended plaint joining second defendants and making new allegations of employment relationship not effected – no power to excuse non-compliance with service requirement of statute – subsequent steps nullities – whether Court empowered under Uniform Civil Procedure Rules to renew process to allow service on statutory insurer – power to make orders about the conduct of proceedings – relevant factors – prejudice to insurer - whether statutory insurer should be served with applications to renew – orders on appeal

Boocock v Hilton International Co [1993] 1 WLR 1065, considered
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79, considered
Brisbane South Regional Health Authority 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.

Continue reading Gillies v Dibbetts

Details

AGLC: Gillies v Dibbetts [2000] QCA 156
Case: [2000] QCA 156
Decision Date: 5 May 2000

CaseChat Overview and Summary

In the case of Gillies v Dibbetts, the plaintiff, who was pursuing a personal injury claim, was represented by the first and second respondents. The defendants, the first and second respondents, were the parties being sued. The case was heard in the Queensland Court of Appeal. The primary issue before the court was whether the court had the authority to excuse non-compliance with the statutory requirement to serve the amended plaint on the Workers' Compensation Board of Queensland, and whether the court could renew the process to allow service on the statutory insurer.

The court examined whether the Uniform Civil Procedure Rules provided the authority to make orders regarding the conduct of proceedings. The relevant factors considered by the court included the prejudice to the insurer and whether the statutory insurer should be served with applications to renew. The court concluded that it had the power to excuse non-compliance with the statutory requirement and to renew the process to allow service on the statutory insurer. The court also determined that the statutory insurer should be served with applications to renew and that any steps taken after 28 January 1997 would be deemed valid and effectual once service was completed.

The appeal was allowed, and the orders of the primary judge were set aside. The amended plaint was renewed until 30 June 2000, and the appellant was directed to re-serve the amended plaint on the first and second respondents. WorkCover Queensland was given the opportunity to apply to have service upon it set aside within 28 days of being served with the amended plaint. The appellant was also directed to serve a copy of the court's order on WorkCover Queensland at the same time as the amended plaint was served on it. The appellant was ordered to pay the costs of the first and second respondents of and incidental to the applications before the primary judge, while the first and second respondents were ordered to pay the appellant's costs of the appeal. Additionally, the first and second respondents were granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.

Orders

Orders of the court

Appeal allowed.

(1) Order that the orders of the primary judge be set aside;

(2) Order that the amended plaint be renewed until 30 June 2000;

(3) Direct that the appellant re-serve the amended plaint on the first and second respondents;

(4) Direct that within 28 days of being served with the amended plaint pursuant to s 185 of the Workers’ Compensation Act 1990 WorkCover Queensland may apply to have service upon it set aside;

(5) Direct that the appellant serve a copy of the order of this Court on WorkCover Queensland at the same time as the amended plaint is served on it;

(6) Order that at the expiration of 28 days from the filing of an affidavit of service upon WorkCover Queensland or upon the determination in its favour of any application by it to have service upon it set aside (whichever is the later), steps purportedly taken since 28 January 1997 be deemed valid and effectual as though they had been taken after service of the amended plaint on WorkCover Queensland;

(7) Order that the appellant pay the costs of the first and second respondents of and incidental to the applications before the primary judge to be assessed on the standard basis;

(8) Order that the first and second respondents pay the appellant’s costs of the appeal;

(9) Order that the first and second respondents be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.

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:	Gillies v Dibbetts [2000] QCA 156
PARTIES:	KAROLYN GILLIES (plaintiff/appellant) v HANS EMILE LUDOLF DIBBETTS and JOANNA WILHELMINA DIBBETTS (first defendants/first respondents) JASON MARK THURLBY and RUTH ELIZABETH THURLBY (second defendants/second respondents) MERCANTILE MUTUAL INSURANCE AUSTRALIA LTD ACN 000 456 799 (second third parties)
FILE NO/S:	Appeal No 8722 of 1999 SC No 6522 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2000
JUDGES:	McPherson and Thomas JJA, Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal allowed. (1) Order that the orders of the primary judge be set aside; (2) Order that the amended plaint be renewed until 30 June 2000; (3) Direct that the appellant re-serve the amended plaint on the first and second respondents; *(4) Direct that within 28 days of being served with the amended plaint pursuant to s 185 of the Workers’ Compensation Act* 1990 WorkCover Queensland may apply to have service upon it set aside; (5) Direct that the appellant serve a copy of the order of this Court on WorkCover Queensland at the same time as the amended plaint is served on it; (6) Order that at the expiration of 28 days from the filing of an affidavit of service upon WorkCover Queensland or upon the determination in its favour of any application by it to have service upon it set aside (whichever is the later), steps purportedly taken since 28 January 1997 be deemed valid and effectual as though they had been taken after service of the amended plaint on WorkCover Queensland; (7) Order that the appellant pay the costs of the first and second respondents of and incidental to the applications before the primary judge to be assessed on the standard basis; (8) Order that the first and second respondents pay the appellant’s costs of the appeal; (9) Order that the first and second respondents be granted an indemnity certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.**
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – service of plaint – requirement for service on the Workers’ Compensation Board of Queensland under Workers’ Compensation Act 1990 – service of amended plaint joining second defendants and making new allegations of employment relationship not effected – no power to excuse non-compliance with service requirement of statute – subsequent steps nullities – whether Court empowered under Uniform Civil Procedure Rules to renew process to allow service on statutory insurer – power to make orders about the conduct of proceedings – relevant factors – prejudice to insurer - whether statutory insurer should be served with applications to renew – orders on appeal Boocock v Hilton International Co [1993] 1 WLR 1065, considered Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79, considered Brisbane South Regional Health Authority v…