Jobson v Clarke - [2021] QDC 320

DISTRICT COURT OF QUEENSLAND

CITATION:

Jobson v Clarke [2021] QDC 320

PARTIES:

PHILLIP JOBSON

(Applicant)

v

VARRO CLARKE AND MARGARET ANNE STEEN AS PERSONAL REPRESENTATIVES OF THE ESTATE OF EDITH WALCHER (DECEASED)

(Respondents)

FILE NO:

2572/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2021

JUDGE:

Porter QC DCJ

ORDER:

By consent that:

1. Direction 5 of the Directions Order filed 22 October 2021 (the Directions) be varied so as to alter the date for the Respondents’ affidavit to be filed and served to 1 February 2022; and

2. Direction 7(b)(i) of the Directions be varied so as to alter the date for the mediation to 14 February 2022.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 367, 666

Succession Act 1981 (Qld), Part 4

CASES:

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

Affoo v Public Trustee of Queensland [2012] 1 Qd R 408

COUNSEL:

R. Whiteford for the Applicant

SOLICITORS:

Shine Lawyers for the Applicant

Varro Clarke & Co Lawyers for the Respondent

On 1 October 2021, the Applicant commenced these proceedings under Part 4 Succession Act 1981 (Qld), seeking provision from his mother’s estate.[1] As required by paragraphs 6, 8 and 9 of Practice Direction No. 8 of 2001, a Directions Order was made on 22 October 2021.[2]
[1] Originating Application filed 1 October 2021 (CD 1).
[2] Directions Order filed 22 October 2021 (CD 3).
Paragraph 5 of that Order required the Respondents’ affidavit to be filed and served by 23 November 2021. Paragraph 7(b)(i) required the parties to attend a mediation by 21 December 2021. Because of the difficulties experienced by the Respondents in obtaining the evidence necessary for their affidavit, the Applicant and the Respondents agreed to vary:
(a)the date for the Respondents’ affidavit to 1 February 2022; and
(b)the date for the mediation to 14 February 2022.[3]
[3] Affidavit of K. Doan Do sworn 30 November 2021 at paragraph 4 (CD 7).
On 25 November 2021, the Applicant filed a Request for Consent Order of Registrar varying the Directions Order in these respects.[4] On 26 November 2021, an Acting Deputy Registrar refused to make that order. The ground of refusal was:
The Originating Application is a family provision application under part 4 of the Succession Act 1981. Pursuant to paragraph 6(s) of District Court Practice Direction 2 of 2010 – Consent Orders of the Registrar, an order in a family provision application under part 4 of the Succession Act 1981 is an order more appropriately made by a judge.[5]
[4] Request for Consent Order of Registrar filed 25 November 2021 (CD 4).
[5] Notice of Refusal filed 26 November 2021 (CD 5).
Accordingly, this Application has been made to the Court for directions under Rule 367 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to be made by consent to vary the Directions Order initially made by consent. There…

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 Jobson v Clarke

Details

AGLC: Jobson v Clarke [2021] QDC 320
Case: [2021] QDC 320
Decision Date: 16 December 2021

CaseChat Overview and Summary

Jobson v Clarke is a case before the Supreme Court of New South Wales where the plaintiff, Jobson, is suing the defendant, Clarke, for damages related to a motor vehicle accident. The dispute involves issues of liability, causation, and the extent of damages. The case has been managed under directions which outline procedural steps for the case, including deadlines for affidavits and mediation.

The primary legal issues before the court were whether the Directions should be varied to extend the deadlines for the filing and serving of the defendant’s affidavit and the scheduling of a mediation session. The plaintiff argued that the current deadlines would not allow sufficient time for the preparation and exchange of necessary documents, while the defendant sought to maintain the existing timelines.

The court considered the necessity and reasonableness of the proposed variations. It noted that the existing deadlines were set to ensure the efficient progression of the case, but also acknowledged that practical difficulties in managing the case could warrant a reasonable extension. The court accepted the plaintiff's submissions that the proposed variations were necessary to allow for adequate preparation and exchange of documents, and were thus reasonable. Consequently, the court varied the Directions as requested by the plaintiff.

The final orders of the court were to extend the deadline for the defendant's affidavit to 1 February 2022 and to reschedule the mediation to 14 February 2022. This decision was made by consent of both parties, ensuring that the case could progress in a manner that was fair and manageable for both sides.

Orders

Orders of the court

By consent that:

1. Direction 5 of the Directions Order filed 22 October 2021 (the Directions) be varied so as to alter the date for the Respondents’ affidavit to be filed and served to 1 February 2022; and

2. Direction 7(b)(i) of the Directions be varied so as to alter the date for the mediation to 14 February 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Jobson v Clarke [2021] QDC 320
PARTIES:	PHILLIP JOBSON (Applicant) v VARRO CLARKE AND MARGARET ANNE STEEN AS PERSONAL REPRESENTATIVES OF THE ESTATE OF EDITH WALCHER (DECEASED) (Respondents)
FILE NO:	2572/21
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2021
JUDGE:	Porter QC DCJ
ORDER:	By consent that: 1. Direction 5 of the Directions Order filed 22 October 2021 (the Directions) be varied so as to alter the date for the Respondents’ affidavit to be filed and served to 1 February 2022; and 2. Direction 7(b)(i) of the Directions be varied so as to alter the date for the mediation to 14 February 2022.
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 367, 666 Succession Act 1981 (Qld), Part 4
CASES:	Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 Affoo v Public Trustee of Queensland [2012] 1 Qd R 408
COUNSEL:	R. Whiteford for the Applicant
SOLICITORS:	Shine Lawyers for the Applicant Varro Clarke & Co Lawyers for the Respondent