Harding v Boulton

DISTRICT COURT OF QUEENSLAND

CITATION:

Harding v Boulton & Anor [2013] QDC 85

PARTIES:

JANELLE MERLE HARDING

(Plaintiff)

And

ROBERT CHRISTOPHER JON BOULTON

(First defendant)

And

QBE INSURANCE (AUSTRALIA) LTD (ACN 003191035)

(Second defendant)

FILE NO/S:

D73/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

2 May 2013

DELIVERED AT:

District Court at Emerald

HEARING DATE:

26 April 2013

JUDGE:

Smith DCJ

ORDER:

1. That the signatures of the Respondents on the Request for trial date be dispensed with pursuant to r 469 of the Uniform Civil Procedure Rules

2.   The trial be listed in the sittings commencing 25 November 2013.

3.   The parties provide written submissions on the question of costs within 7 days.

CATCHWORDS:

PROCEDURE- application for dispensation of signature on request for trial date

Motor Accident Insurance Act 1984, ss 3, 51B

Uniform Civil Procedure Rules, r 5, 467 and 469

August v GJ Glass and Aluminium (QLD) Pty Ltd [2001] QDC 84

Foreman v Lee and Anor [2005] QCA 86

Yarrum Equities Pty Ltd v McConville and Anor [2011] QDC 287

COUNSEL:

S. Deaves for the Applicant Plaintiff

S. Williams for the Respondent Defendants

SOLICITORS:

Chris Trevor and Associates for the Applicant Plaintiff

Jensen McConaghy Solicitors for the Respondent Defendants 

1. This is an application by the applicant/plaintiff pursuant to r 469 of the Uniform Civil Procedure Rules for an order dispensing with the signature of the respondent/defendants on a request for trial date. 

1. There is no dispute between the parties that the request for trial date was served by the plaintiff’s solicitors on the defendant’s solicitors under Rule 467 (2) and that the request was not signed and returned within 21 days.

1. The issue is whether the court in the exercise of its discretion should make the order sought. 

1. The plaintiff submits the order should be made and that the matter should be listed for trial in the sittings commencing 25 November 2013. 

1. The defendant on the other hand submits that it is not ready for trial because the defendants wish to investigate the Medicare claims history of the plaintiff. 

1. In August v GJ Glass and Aluminium (QLD) Pty Ltd [2001] QDC 84 McGill DCJ held at [12]:

“It does not follow that as long as the other party is seeking any further disclosure the matter will not be ready for trial; it may be that one party takes the view that there has been proper disclosure and on that view the party will be ready for trial (so far as disclosure is concerned) even if the other party asserts that proper disclosure has not been made.”

1. Leaving aside this consideration, to my mind the rules contemplate that two sorts of applications can be brought in this area. 

1. Firstly, an order can be made pursuant to r 467(2) if a defendant declines to sign certificate of readiness. Such an application would bring into play the various requirements of r 467.

1. On the other hand, an application under r 469 may be brought as an…