Mathews v University of Queensland

[2001] FCA 1784

FEDERAL COURT OF AUSTRALIA

Mathews v University of Queensland [2001] FCA 1784

RUSSELL GORDON HAIG MATHEWS v UNIVERSITY OF QUEENSLAND

No Q 162 of 2001

SPENDER J
BRISBANE
10 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 162 OF 2001

BETWEEN:	RUSSELL GORDON HAIG MATHEWS APPLICANT
AND:	UNIVERSITY OF QUEENSLAND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	10 DECEMBER 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

(1)The applicant file and serve a statement of claim by 4 pm on Friday, 18 January 2002.

(2) In default of compliance with order (1), the application stand dismissed with costs.

(3)In the event of compliance with order (1), the respondent file and serve its defence on or before Friday, 1 February 2002 at 4 pm. 

(4)The matter be listed for further directions on Friday, 15 February at 9.30 am.

(5)The costs of today be reserved.

(6)The application by the respondent that the applicant pay the costs of and incidental to the directions hearings on 7 September 2001 and 10 December 2001 is adjourned to 9.30 on Friday, 15 February.

(7)The parties have liberty to apply on five (5) days notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 162 OF 2001

BETWEEN:	RUSSELL GORDON HAIG MATHEWS APPLICANT
AND:	UNIVERSITY OF QUEENSLAND RESPONDENT

JUDGE:	SPENDER J
DATE:	10 DECEMBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In this matter I made orders on 7 September 2001 that the applicant file and serve a statement of claim by 4 pm on 19 October 2001;  the respondent file and serve a defence within 14 days thereafter; the application be adjourned for further directions to Monday, 10 December at 9.30 am, and costs be reserved.  I ordered that there be liberty to each party to apply within seven days written notice to the other. There has been no compliance by the applicant with the first of those orders.  There has been correspondence between Brian Bartley and Associates, solicitor for the respondent, the University of Queensland, and the applicant concerning the non-compliance with the filing and serving of a statement of claim, either within the time ordered or at all.

2. Notwithstanding that there was liberty to apply on seven days notice, Mr Mathews took no advantage of that provision.  This morning, on 10 December, he produced to the Court and to the legal representatives of the respondent a document signed by a Dr John C. Slaughter, who is a specialist psychiatrist.  This letter is dated 29 October 2001, but its presence was not revealed until today, and no application was made to the Court to be relieved of the obligations imposed by the orders made on 7 September 2001. 

3. The document is addressed “To whom it may concern”, and the body of it reads:

   “This is to state that Mr Russell Mathews was seen by me, having been referred by Dr John Bennett of the University of Queensland Health Service.

   Mr Mathews is suffering from a significant Anxiety condition, which has been present for some time but has recently become worse. 

   He has a past history of Acquired Brain injury that was caused by a fall from a horse in 1967. 

   [Mr] Mathews’ current condition is such that he is having significant difficulty with concentration and attention.  I consider that he is currently medically unfit to prepare his statement for Court action. 

   I am unable to at this point to predict when he will recover to the point where he can manage this work.”

   And it is signed John Slaughter.

4. This document, I have to say, has an element of presumption about it in the assessment of the medical competence of a person to prepare a statement of claim.  It does not appear that Dr Slaughter was aware of the affidavit which accompanied the application by Mr Mathews, nor of the need for his claim to be properly formulated if he is to be permitted to pursue it.

5. If it be the case that Mr Mathews is unable to prepare a statement of claim in conformity with the Rules of the Federal Court, there is the possibility of injustice in having the present matter on foot.  A better course may very well be to dismiss the present application for its want of a properly articulated claim.  In the future when Mr Mathews is able properly to formulate a claim, he can bring that application then.

6. Be that as it may, what I propose to do is this:

   (1)I direct that the applicant file and serve a statement of claim by 4 pm on Friday, 18 January 2002.

   (2) In default of compliance with that order the application stand dismissed with costs.

   (3)In the event of compliance with that order, I direct the respondent file and serve its defence on or before Friday, 1 February 2002 at 4 pm. 

   (4)I list this matter for further directions on Friday, 15 February at 9.30 am.

   (5)I reserve the costs of today

   (6)The application by the respondent that the applicant pay the costs of and incidental to the directions hearings on 7 September 2001 and 10 December 2001 be adjourned to 9.30 am on Friday 15 February 2002.

   (7)The parties have liberty to apply on five (5) days written notice.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             13 December 2001

The Applicant appeared in person.
Solicitor for the Respondent:	Mr B. Cohen, Brian Bartley & Associates
Date of Hearing:	10 December 2001
Date of Judgment:	10 December 2001