Keeble v Retail Adventures Pty Ltd

[2010] QDC 467

[2010] QDC 467

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 809 of 2010

ANDREW KEEBLE	Plaintiff
and
RETAIL ADVENTURES PTY LTD AND ANOTHER	Defendant

BRISBANE

DATE 14/09/2010

ORDER

HIS HONOUR:  This is an application by the plaintiff for orders that the first defendant's and second defendant's signature on a request for trial date be dispensed with and that the claim be placed on the callover list as a claim that is ready for trial.

As far as the plaintiff is concerned, he is ready for trial.  He gave notice to the defendant's solicitors on 6 August 2010.  The application is opposed principally on the grounds that the parties ought to engage in a mediation before the matter is set down for trial; further, that the defendants are not ready for trial as they have to interview a number of witnesses and complete inspection of the plaintiff's documents.

It is clear that the claim has been on foot for some time.  It was filed in March of this year and in April of this year the notice of intention to defend was filed and served.  However, I accept that the defendants are not ready for trial and now consider a mediation is appropriate.

While that persuades me to dismiss the application I intend no criticism of the plaintiff.  In my view it has been the plaintiff's request for trial date that has led the defendants' solicitors to determine what needs to be done to be ready for trial and to engage in a mediation which are steps that could have been put in motion before the request for trial date was sent on 6 August 2010.

However, that's a separate issue.  That is, it relates to the question of costs and I'll hear submissions on that.  But in the circumstances, while acknowledging the plaintiff's desire to get on with the trial, at this stage I am not prepared to dispense with the signature on the request for trial date.

. . .

HIS HONOUR:  I consider on the question of costs that the plaintiff's application has actioned the first defendant and second defendant.  That is, it has spurred them on to look at what they've got to do about the action if they're serious about defending the action.  They've had since April when presumably they were taking instructions for the defence to decide these issues as to witnesses and documents et cetera. 

I consider that the plaintiff is entitled to negotiate what are the terms of a mediation and I do not think that disqualifies the plaintiff in any way on the question of costs.

In all the circumstances I order the first defendant and the second defendant to pay the plaintiff's costs of the application to be assessed on the standard basis.

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