High Grove Trading Albion Pty Ltd v Slattery

[2011] QDC 149

[2011] QDC 149

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2528 of 2008

HIGH GROVE TRADING ALBION PTY LTD (ACN 124 582 663)	Plaintiff
and
MITCHELL SLATTERY and ANOR	Defendant

BRISBANE

..DATE 12/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999 r 667, r 668, r 675

Defendant's application to vary an order for security for damages as a condition of staying a judgment - application incompetent, being made under a rule about security for costs, and dismissed, on basis defendants (who did not appear) could try again - defendants' apparent assertion application had been adjourned could not be verified

HIS HONOUR:  The defendants' application filed the 20th of June 2011 is dismissed.  It is an application describing itself as brought under Rule 675 for variation of an order made by Judge McGill SC on the 11th of May 2011 which stayed execution on a judgment obtained by the plaintiff for 28 days and provided for the judgment to be set aside if security, which has to be understood as security for damages, were paid within that 28 days.

If Rule 675 applied, the application would be tenable.  However, as Mr Ferrett for the plaintiff points out rule 675 does not apply because his Honour's order was not made under Chapter 17, Security For Costs.  The application appears untenable.  There are more general possibilities in the Rules of reviewing an order such as Judge McGill's otherwise than on appeal.  Those are Rules 667 and 668, the latter of which focuses on matters arising after the order.

The affidavit filed in support of the application doesn't seem to me to trigger Rule 668.  Without looking into the matter in detail, Mr Ferrett appears broadly correct that the various circumstances covered by Rule 667 do not apply either.

Mr Slattery, the applicant, hasn't appeared today when called.  The application has apparently not been served on the plaintiff.  Its solicitor happened to notice it in the Law List and, further, received a telephone message last night to the effect that the application had been adjourned.  My Associate's inquiries in the Registry haven't unearthed any person there with any recollection of hearing from Mr Slattery.  It is a possibility, I suppose, that Mr Slattery had it in mind to do something about setting up an adjournment after the telephone call to the solicitor.  As far as the Court is concerned, nothing appears to have been done.

As Mr Ferrett apprehended, the Court is uneasy about making orders against the interests of a self-represented litigant, in particular against one who isn't here.  That gives a draconian appearance to the dismissal of the application but there's no way of knowing what to do with it except to adjourn it to a date to be fixed, which leaves matters uncertain.

Mr Ferrett accepts that Mr Slattery, the first defendant, will be able to apply again and without incurring Court fees in respect to filing a new application.  The alternative relief sought by him was essentially more time to comply with Judge McGill's order of relatively modest dimensions, that is, until the 8th of August 2011.

Maybe Mr Slattery, if he has a sufficiently compelling story to tell, will be able to get that extra time but for the moment the efficient course which it seems to me won't have any dire or final consequences for him is the one the Court takes.

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