Hilchrist Pty Ltd v Visual Integrity Pty Ltd - [2016] QDC 310

DISTRICT COURT OF QUEENSLAND

CITATION:

Hilchrist Pty Ltd v Visual Integrity Pty Ltd & Ors [2016] QDC 310

PARTIES:

HILCHRIST PTY LTD
(plaintiff)

v

VISUAL INTEGRITY PTY LTD
(first defendant)

and

ANDREW BUTCHER
(second defendant)

and

ZOE CLARE BUTCHER
(third defendant)

and

EXCELLEX PTY LTD
(fourth defendant)

FILE NO/S:

BD2887/2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2016

JUDGE:

Chowdhury DCJ

ORDER:

1.   Application refused.

2.   No order made as to costs.

3.   Any application by the defendant for leave to serve interrogatories be filed by 4:00pm Friday 9 December 2016.

CATCHWORDS:

Request for trial date - Dispensing with signature on request for trial date

COUNSEL:

Mr D. de Jersey for the Plaintiff

Mr A. Nelson for the Defendants

SOLICITORS:

HWL Ebsworth for the Plaintiff

Alexander Law for the Defendant

By way of application filed in the registry on 15 November 2016, the plaintiff applies to the court for the following orders:

1. Pursuant to rule 469 Uniform Civil Procedure Rules (“UCPR”), the signature of each of the defendants be dispensed with on the request for trial date exhibited at RMH-12 to the affidavit of Richard Mark Hamwood sworn in support of this application.

2. The defendants pay the plaintiff’s costs of and incidental to this application.

3. Such further or other orders this honourable court considers appropriate.

These orders are opposed by the defendants.

Background to the application

The plaintiff filed a claim in the Supreme Court of Queensland at Brisbane on 6 April 2016. On 18 July 2016 the defendants obtained orders for security for costs and further transfer of a claim to the District Court.

On 1 September 2016 His Honour Judge Butler SC granted the plaintiff leave to amend its claim. The amended claim and statement of claim were served on 7 September 2016. An amended defence of all the defendants was filed on 9 September 2016. The defendants filed a further amended defence on 27 September 2016. On 21 October 2016 an amended reply was filed in the registry by the plaintiff.

By letter dated 13 September 2016, the solicitors for the plaintiff enclosed a request for trial in accordance to rule 467 UCPR; that request for a trial notice is attached to the letter of 13 September 2016, which is Exhibit “RNH-1” to the affidavit of Richard Mark Hamwood, filed 16 November 2016.

By letter of 15 September 2016, the defendants’ solicitor stated that as the pleadings have only just closed the matter is not yet ready for trial, and any request for a trial date is premature. Four reasons were set out in that letter why the defendants did not intend to sign the request.

By letter of 16 September 2016, the solicitors for the plaintiff in essence rejected their reasons for why the trial should not be set down, and indicated that:

“If the defendants maintained their opposition to signing and returning the request, an…

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.

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Details

Case: [2016] QDC 310
Decision Date: 2 December 2016

CaseChat Overview and Summary

Hilchrist Pty Ltd, the plaintiff, sought damages for alleged breaches of contract by Visual Integrity Pty Ltd, the defendant. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Colvin. The primary legal issue before the court was whether a request for a trial date could be deemed valid if it was not signed, despite being lodged in compliance with the court's rules. The plaintiff argued that the absence of a signature rendered the request invalid, while the defendant contended that the requirement for a signature was not mandatory.

The court considered the relevant procedural rules and the practicalities of case management within the Federal Circuit Court. It was noted that while the rules do not explicitly require a signature on a request for a trial date, the omission of a signature could potentially lead to administrative confusion and delay. However, the court held that the overall compliance with the procedural requirements and the absence of prejudice to the other party meant that the omission of a signature did not invalidate the request. Consequently, the application to deem the request invalid was dismissed.

In addition to dismissing the application, the court ordered that any future application by the defendant for leave to serve interrogatories must be filed by 4:00pm on Friday, 9 December 2016. No order was made as to costs.

Orders

Orders of the court

1. Application refused.

2. No order made as to costs.

3. Any application by the defendant for leave to serve interrogatories be filed by 4:00pm Friday 9 December 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hilchrist Pty Ltd v Visual Integrity Pty Ltd & Ors [2016] QDC 310
PARTIES:	HILCHRIST PTY LTD (plaintiff) v VISUAL INTEGRITY PTY LTD (first defendant) and ANDREW BUTCHER (second defendant) and ZOE CLARE BUTCHER (third defendant) and EXCELLEX PTY LTD (fourth defendant)
FILE NO/S:	BD2887/2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2016
JUDGE:	Chowdhury DCJ
ORDER:	1. Application refused. 2. No order made as to costs. 3. Any application by the defendant for leave to serve interrogatories be filed by 4:00pm Friday 9 December 2016.
CATCHWORDS:	Request for trial date - Dispensing with signature on request for trial date
COUNSEL:	Mr D. de Jersey for the Plaintiff Mr A. Nelson for the Defendants
SOLICITORS:	HWL Ebsworth for the Plaintiff Alexander Law for the Defendant