Hamilton v Queensland Rail

[2002] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Hamilton v Queensland Rail [2002] QDC 167

PARTIES:

KENNETH MICHAEL HAMILTON
Plaintiff

v

QUEENSLAND RAIL
Defendant

FILE NO/S:

5290 of 1997

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2002

JUDGE:

Judge Alan Wilson SC

ORDER:

1.  Application dismissed
2.  Defendant to pay Plaintiff costs of and incidental to the application assessed on the standard basis.

CATCHWORDS:

COUNSEL:

SOLICITORS:

Bernays & Bernays for the Plaintiff
McInnes Wilson for the Defendant

1. In this matter His Honour Judge Healy Q.C. ordered on 1 November 2001 that the plaintiff have leave to proceed and, inter alia, deliver an amended statement of claim within 21 days.  It was further ordered that the defendant file and serve an amended defence, compliant with the Uniform Civil Procedure Rules, within 28 days after it was served with that amended statement of claim.

1. The plaintiff filed its amended statement of claim on 26 November 2001.  Thereafter, as the affidavit of Shane Paul Charles filed 8 May 2002 shows, there was correspondence between the solicitors about settlement which also touched upon delivery of the amended defence.  While negotiations ensued, Mr Charles demanded a defence within seven days of 22 March 2002.  On 4 April the defendant’s solicitors replied in a letter which, it appears, contained a settlement offer and also said that if the matter could not be resolved within 14 days those solicitors expected instructions to file and serve the amended defence.  On 18 April Mr Charles wrote rejecting the defendant’s offer, and demanding a defence within 14 days.

1. This application was brought on the papers.  The defendant did not seek an oral hearing but, instead, sent its amended defence to the court on the hearing date, 5 June, 2002, and filed it early that morning.

1. In the circumstances the order sought is unnecessary but there seems no reason why the plaintiff ought not have his costs of and incidental to the application.  The defendant’s solicitors' letter of 5 June made no submissions about that matter.

1. I order, then, that the application be dismissed; and that the defendant pay the plaintiff’s costs of and incidental to the application assessed on the standard basis.