Lippsfield Pty Ltd t/a Rob Schulz Electrical v O'Neill t/a O'Neills Business Lawyers

[2009] QDC 46

[2009] QDC 46

DISTRICT COURT
CIVIL JURISDICTION

JUDGE CLARE SC

No 3103 of 2008

LIPPSFIELD PTY LTD (ACN 010 857 628)	Appellant
TRADING AS ROB SCHULZ ELECTRICAL
and
ROBERT JAMES SCHULZ	Appellant
and
KERRY JOSEPH O'NEILL TRADING AS	Respondent
O'NEILLS BUSINESS LAWYERS (ACN 683 280 630)
BRISBANE ..DATE 26/02/2009

ORDER
HER HONOUR: This is an appeal against the order of a

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Magistrate striking out a second amended defence and counter-
claim. The second defendant is a director of the first
defendant Lippsfield Pty Ltd. The defendants are the
appellants. The respondent/plaintiff is Lippsfield's former

solicitor.	10
On the 24th of July 2007 the plaintiff solicitor commenced an
action in the Magistrates Court to recover unpaid legal fees from the defendants for the amount of $12,870 plus interest. On the 24th of August 2007 the defendants filed a defence	20
disputing the claim on the basis of alleged negligence. On
the 14th of November 2007 at a directions conference the
parties consented to a direction that: "Either party may
apply to set down the matter for trial by writing to the
Registry requesting the same at any time after the 30th of	30
January 2008." Consequently, upon the written request of the plaintiff the trial was set down for 24 April 2008.
On the 4th of April the trial was adjourned upon the
application of the defendants. Subsequent attempts by the	40
plaintiff to obtain a new trial date were resisted by the defendants.
On the 17th of June the plaintiff sent a request for trial
date to the defendants. On the 29th of August the defendants	50

filed a second amended defence and counter-claim.
An application by the plaintiff to dispense with the request 2 ORDER 60

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for trial date was heard on the 4th of September. At that
hearing the Magistrate indicated that leave was required
pursuant to rule 380 of the Uniform Civil Procedure Rules for
the filing of that second amended defence and counter-claim.

His Honour declined to accept an oral application and said the	10
defendant's application to amend had to be on notice to the plaintiff. His Honour allowed the plaintiff 21 days to apply to strike out the second amended defence and counter-claim.
The defendants did not file an application for leave to amend.	20
Instead their solicitor wrote to the plaintiff advising of an
intention to make an oral application should leave to amend be
required. The plaintiff then brought the application to
strike out the pleading on the basis that the pleadings were
defective or that leave was required.	30
The defendants contended that leave was not required or, if it was, the defendants should have been permitted to make an oral application for leave to amend.
40
The Magistrate struck out the second amended defence and
counter-claim on the basis that it had been filed without
leave in contravention of Rule 380. His Honour refused to
hear the defendants’ oral application for leave but gave them
seven days to file an application for leave to amend. The	50
defendants did not file an application for leave to amend.
The notice of appeal was filed in this Court by them 20 days
after the Magistrate’s order was made.

3 ORDER 60

The first ground of appeal is that the Magistrate erred in
finding that the defendants required leave pursuant to Rule
380 to make the amendments set out in the second amended
defence and counter-claim. The rules provide for the

amendment of pleadings as-of-right up to the filing of a	10
request for trial date. After that time leave must be
obtained. That is the effect of Rules 378, 380 and 470.
Their terms are very clear. Rule 380 provides: "An amendment
after the filing of the request for trial date may only be
made with leave of the Court." Rule 470 is in similar terms.	20
Clearly, whether or not leave to amend was required in the
present case must depend upon whether a request for trial date
had been filed. This is the pre-condition to operation of
Rules 380 and 470. Rule 378 would otherwise permit amendment	30
as often as necessary.
The question of whether a request for trial date had been
filed was not ventilated below. The respondents submission
before the Magistrate relied upon the fact that the matter had	40
previously been listed for trial. The formulation of the
submission was misconceived. A listing for trial is not the
circumstance which closes pleadings under Rules 380 or 470.
Nonetheless, this was the basis of the successful application
to strike out the pleadings under Rule 380.	50

After an exchange with counsel, the Magistrate's reasons were brief. He said he struck out the second amended defence and counter-claim because "It's not filed with leave of the 4 ORDER 60

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Court."

Argument on appeal crystallised a dispute about how the trial
came to be listed. The document which triggered the listing

had not previously been put into evidence and counsel for the	10
appellant objected to its tender on appeal. I received the
document. It was not fresh evidence. It was a document
created by the respondent and therefore clearly available to
him at the time of the hearing but it was correspondence on
the Court file and its existence had been disclosed to the	20
appellants before the hearing below.
Because the way in which the matter came to be listed for
trial was of critical importance to the principal ground of
appeal I took the view that there were exceptional	30
circumstances which warranted the receipt of the material.
The document in question was a letter dated 1 February 2008
from the respondents solicitor to the Registrar requesting
that the trial be set down in accordance with the consent
direction of 14 November. It purported to enclose a request	40
for trial document signed by the respondents solicitor. The
enclosure referred to as the request for trial document is not in evidence. It is not claimed that the appellants had signed it.
50

Previous affidavits and outlines from the respondent referred to the document being sent to the Registrar rather than filed. The respondent contends that the correspondence of 1 February should be taken to be a filing of a request for trial date for 5 ORDER 60

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the purpose of Rule 380.

By virtue of Rule 467, unless a Court otherwise orders, a
claim cannot be set down for trial unless a request for trial

signed by all parties has been filed. Rule 469 defines what	10
will constitute the request for trial date: It must be in the approved form, it must be signed by both parties unless the Court has dispensed with the signature of a party.
It follows that the document described as a request for trial	20
document signed only by the respondent could not be a request
for trial, as referred to in the rules, unless a Court had
dispensed with the signature of the appellants. The only
order of possible relevance was the consent direction of 14
November 2007. Consistent with Rule 467, subrule 2, it	30
provided an alternative mechanism for the listing of the trial so that the filing of a request for trial signed by both parties was not necessary.
Did the consent direction amount to an order dispensing with	40
the signature of one party? It did not mention either a
request for trial date document or the filing of such a
document. In my view, it could not be stretched to imply a dispensation of aspects of a form document which it did not mention and which it did not require. It offered an alternate	50

process of listing without use of a request for trial date
form.
The conclusion that there was no dispensation of the signature 6 ORDER 60

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of both parties means that no request for trial date was
filed. If no request for trial date was filed, neither rule
380 nor 470 applied. The appellants did not require leave to
file their amended their defence and counter-claim. The

entitlement to amend under Rule 378 was not lost just because	10
the process for listing for trial had been modified.
The twin preconditions of a request and the filing of the
request in Rule 380 still had to be satisfied. This was the
approach taken by Douglas J in Interline Hydrocarbon v Brenzil	20
[2005] QCA 109 where a previous order dispensing with the need for filing of a request did not bring Rule 380 into operation.
It follows on proper construction that this case fell outside
of Rule 380; the Magistrate erred in acting upon that rule to	30
strike out the pleadings; the appeal is allowed. It is not then necessary to consider the alternate grounds relating to the refusal of leave to amend.
...	40
HER HONOUR: (1) The appeal is allowed.
(2) The order of the Magistrates Court of Queensland given on

the 16th of October 2008 in proceedings number M624 of	50
2007 is set aside.

(3) The application filed 25 September 2008 is dismissed.
(4) The respondents are to pay the appellants costs of and 7 ORDER 60

incidental to the application filed 25 September 2008.

Those costs will be on a standard basis.

(5) The respondents are to pay the appellants costs of and 10

incidental to the appeal on the indemnity basis.

...

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8 ORDER 60