Labaj v Collins

[2005] QDC 28

DISTRICT COURT OF QUEENSLAND

CITATION:

Labaj v Collins [2005] QDC 028

PARTIES:

JOHN LABAJ
Applicant/plaintiff
And
LES COLLINS
Respondent/defendant

FILE NO:

BD 225 of 2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

24 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

1.    By consent, application filed 9 February 2005 dismissed.

2.    Application for summary judgment filed
2 February 2005 dismissed.

CATCHWORDS:

PROCEDURE – SUMMARY JUDGMENT – summary judgment pursuant to r 292 Uniform Civil Procedure Rules – whether defendant has no real prospect for successfully defending all or part of plaintiff’s claim.

Uniform Civil Procedure Rules, r 292
Health Practitioner’s (Professional Standards) Act 1999

Cases considered:
Gray v Morris [2004] QCA 5
Labaj v Collins [2004] QCA 334
Perre v Apand Pty Ltd (1999) 198 CLR 180

COUNSEL:

Mr John Labaj, applicant, in person
Ms S Dyer, Solicitor by telelink for the defendant

SOLICITORS:

The appellant appeared on his own behalf
Wilson Ryan Grose Lawyers for the respondent

1. This is an application by the plaintiff for summary judgment under the UCPR r 292, which provides:

292(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2)If the court is satisfied —

(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

(b)there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

1. The application for summary judgment was, the court file shows, filed on 25 January 2005.  It also seeks “… Summary Judgement be entered for the plaintiff against the defendant in pursuance of r 280 …”. The application under r 280 and supporting affidavits from Mr Labaj apparently refer to an earlier application he filed on 10 December 2004 for an order that the “… defendant enters a plea and proper defence, taking in consideration the Court of Appeal’s orders”, and for directions.  Rule 280 confirms the court’s jurisdiction to dismiss an action for want of prosecution where a plaintiff, or applicant is required to take a step under the rules or an order of the court and does not do so. The rule is inappropriate here, and it appears the plaintiff’s complaint is, instead, of the kind envisaged by r 374 (Failure to comply with order).

1. The background circumstances to the application, and the action, are set out in the reasons of Cullinane J in Labaj v Collins [2004] QCA 334, in which Mr Labaj successfully appealed against an award of summary judgment in this matter to the defendant. He had made a claim for workers’ compensation to WorkCover Queensland in respect of what is described as…