Kent v Hunt Robinson Pty Ltd - [2001] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION: Kent & Anor v. Hunt Robinson Pty Ltd & Ors [2001] QDC 199

PARTIES: MARK KENT AND JANE KENT   (Plaintiffs)
And
HUNT ROBINSON PTY LTD ACN 010 953 027
(First Defendant)
And
SCOTT PINKSTONE   (Third Defendant)
And
LESLIE WALTER DZUFER                  (Fourth Defendant)

FILE NO/S: D119 of 2000

DIVISION: Applications

PROCEEDING: Application by plaintiff for directions
Application by third party to file and serve a third party notice

ORIGINATING COURT: Maroochydore

DELIVERED ON: 7^th September 2001

DELIVERED AT: Maroochydore

HEARING DATE: 3^rd September 2001

JUDGE: Judge J.M. Robertson

ORDER:
I refuse the third defendant’s application with costs.1.

In relation to the plaintiff’s application, I order:2.

the parties serve expert reports upon other parties by 24^th September 2001.(a)

the claim be placed on the callover list for matters to be called over on 14^th September 2001 without the need for the parties to sign a request for trial date;(b)

the third defendant to pay the plaintiffs’ costs of the application to be assessed on the standard basis.(c)

CATCHWORDS:
PRACTICE – Summons for directions – Application by plaintiffs for directions – whether court should hear application notwithstanding failure to comply with UCPR

PRACTICE – Joinder of parties – Application by third defendant to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations

Cases cited:

Just GI Pty Ltd & Ors v. Pig Improvement Company Australia Pty Ltd [2000] QSC 163;
Phonesivorabouth v. Tops Services Pty Ltd (1992) 106 FLR 471
AMP Fire & General Insurance Company Limited v. Dixon (1982) VR 833

Statutes considered:

Uniform Civil Procedure Rules, Chapter 11 Part 8, rr 194, 448

COUNSEL: F. Dawson (for the Plaintiffs)
N.V. Stubbins (for the Third Defendant)

SOLICITORS: Butler, McDermott & Egan (for the Plaintiffs)
Minter Ellison (for the Third Defendant)

There are two applications before the Court. The first in time is the plaintiff’s application filed 6^th August 2001 for directions. The material in support of that application indicates that what the plaintiff seeks is an order that all expert reports be served on all parties by 24^th September and that the matter be placed on the callover list and the request for trial date be dispensed with. A preliminary matter arose after I had reserved my judgment which I should mention now. The plaintiffs’ application is supported by an affidavit by her solicitor, Mr Greenhalgh, sworn 28^th August 2001 and filed 30^th August 2001. The application is one to which Part 8 of Chapter 11 Uniform Civil Procedure Rules applies, and there is no evidence before me of compliance with that part. The application is however only opposed by one party, the Third Defendant who was represented by Mr Stubbins of counsel. The remaining defendants (the claim against the second defendant has been discontinued) have all consented to the orders sought to dispense with the request for trial date and placing the…

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: [2001] QDC 199
Decision Date: 7th September 2001

CaseChat Overview and Summary

The case of Kent v Hunt Robinson Pty Ltd involved a dispute between the plaintiff and the first and second defendants, with a third defendant subsequently joining the proceedings. The nature of the dispute was not explicitly detailed in the summary, but it pertained to a summons for directions and a request for the joinder of a third party. The matter was heard in a court whose specific designation was not mentioned in the summary.

The legal issues before the court encompassed two main areas. Firstly, the court had to determine whether it should proceed with the plaintiffs' application for directions despite their failure to comply with the requirements of the Uniform Civil Procedure Rules. Secondly, the court needed to decide on the application by the third defendant to file and serve a third party notice outside the prescribed period, assessing whether leave should be granted and considering relevant factors.

The court's reasoning focused on the procedural compliance and the implications of the late joinder by the third defendant. Regarding the plaintiffs' application, the court acknowledged the procedural breach but determined that it was in the interest of justice to proceed with the application, particularly given the need to expedite expert report exchanges and the scheduling of the matter for hearing. As for the third defendant's application, the court found that the delay and lack of justification warranted refusal of the application, resulting in costs being awarded against the third defendant. The court emphasized the importance of adhering to procedural timelines and the need for parties to act promptly in joining additional defendants.

The final orders included the requirement for the parties to serve expert reports by a specified date, the placement of the claim on a callover list for a particular date without further request from the parties, and the imposition of costs on the third defendant for the unsuccessful application.

Orders

Orders of the court

I refuse the third defendant’s application with costs.1.

In relation to the plaintiff’s application, I order:2.

the parties serve expert reports upon other parties by 24th September 2001.(a)

the claim be placed on the callover list for matters to be called over on 14th September 2001 without the need for the parties to sign a request for trial date;(b)

the third defendant to pay the plaintiffs’ costs of the application to be assessed on the standard basis.(c)

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:	Kent & Anor v. Hunt Robinson Pty Ltd & Ors [2001] QDC 199
PARTIES:	MARK KENT AND JANE KENT (Plaintiffs) And HUNT ROBINSON PTY LTD ACN 010 953 027 (First Defendant) And SCOTT PINKSTONE (Third Defendant) And LESLIE WALTER DZUFER (Fourth Defendant)
FILE NO/S:	D119 of 2000
DIVISION:	Applications
PROCEEDING:	Application by plaintiff for directions Application by third party to file and serve a third party notice
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	7^th September 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	3^rd September 2001
JUDGE:	Judge J.M. Robertson
ORDER:	I refuse the third defendant’s application with costs.1. In relation to the plaintiff’s application, I order:2. the parties serve expert reports upon other parties by 24^th September 2001.(a) the claim be placed on the callover list for matters to be called over on 14^th September 2001 without the need for the parties to sign a request for trial date;(b) the third defendant to pay the plaintiffs’ costs of the application to be assessed on the standard basis.(c)
CATCHWORDS:	PRACTICE – Summons for directions – Application by plaintiffs for directions – whether court should hear application notwithstanding failure to comply with UCPR PRACTICE – Joinder of parties – Application by third defendant to file and serve third party notice outside prescribed period – whether leave should be granted – relevant considerations *Cases cited:* Just GI Pty Ltd & Ors v. Pig Improvement Company Australia Pty Ltd [2000] QSC 163; Phonesivorabouth v. Tops Services Pty Ltd (1992) 106 FLR 471 AMP Fire & General Insurance Company Limited v. Dixon (1982) VR 833 *Statutes considered:* Uniform Civil Procedure Rules, Chapter 11 Part 8, rr 194, 448
COUNSEL:	F. Dawson (for the Plaintiffs) N.V. Stubbins (for the Third Defendant)
SOLICITORS:	Butler, McDermott & Egan (for the Plaintiffs) Minter Ellison (for the Third Defendant)