Maurice Blackburn Cashman Pty Ltd v Burmingham

[2005] VSC 245

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9783 of 2004

MAURICE BLACKBURN CASHMAN PTY LTD	Plaintiff
v
DAVID BURMINGHAM	Defendant

---

JUDGE:	Cummins  J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2005
DATE OF RULING:	1 July 2005
CASE MAY BE CITED AS:	Maurice Blackburn Cashman Pty Ltd v Burmingham
MEDIUM NEUTRAL CITATION:	[2005] VSC 245

---

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Collins SC with Mr P. McCaffrey	Maurice Blackburn Cashman Pty Ltd
For the Defendant	In person (by videolink)

HIS HONOUR:

1. I order that the plaintiff have leave to file and serve an amended statement of claim by 8 July 2005 at 4.00 p.m., the defendant's address for service being 80/128 Benowa Road, Southport, Queensland, 4215.

1. I propose to give a very extended period of time for the defendant to file a defence and serve it, out of consideration for his financial situation, his medical situation, and his geographical situation.  Accordingly I direct that the defendant file and serve his defence to the amended statement of claim and any counter claim, if he wishes to file one, by 4.00 p.m. on 1 September 2005.

1. Next, I order that the plaintiff file and serve its reply and defence to the counter claim by 4.00 p.m. on 23 September 2005.  Next, that the proceeding be referred to the Listing Master to be fixed for trial after 28 October 2005.  I direct that all the costs of the proceedings be costs in the cause.

1. I direct that the summons of the defendant filed 7 June 2005 be adjourned sine die with liberty to apply.  The reason for that is this; that the defendant, when he receives the full statement of claim, may wish to reactivate the summons to strike out the statement of claim.  He has a right to seek that relief, and accordingly I will preserve that right to him by adjourning his summons with liberty to apply when he has received the statement of claim in full of the plaintiff.  In that way Mr Burmingham will be informed as to what it is that is claimed against him, and thus will be informed as to whether he wishes to make a further application, or more correctly, reactivate the application that the statement of claim be struck out or set aside.

1. In the meantime the relief sought in Item 3 in Mr Burmingham's summons, which involves a third party in any event, is adjourned over on the same basis as all the relief sought in the summons on 7 June 2005.  For Mr Burmingham to seek that relief he would need to join persons and serve persons, and if he seeks that relief, he can no doubt take those steps upon legal advice, if he obtains it, or in any event after he has received the full statement of claim.

1. The essential bottom line of all of this is that the plaintiff is entitled to fully articulate its claim.  The defendant is entitled to know what is the fully articulated claim before he further considers his position.  I have preserved his rights on the summons of 7 June 2005 until he is in an informed position as to the true nature and detail of the claim against him.

1. Finally it would be wholly illogical for me to reject a claim which has not yet been fully formulated by the plaintiff.  Indeed it is the correct process of law to enable a party to express its claim before it is determined, and I propose to allow the plaintiff to do precisely that.

1. I direct that the costs of this proceeding are costs in the cause.

HIS HONOUR:  Are there any further matters, Mr Collins?  I'll come to you in a minute.  Mr Collins?

MR COLLINS:  Your Honour, in his summons Mr Birmingham seeks an express order that his address for service in the proceeding be 80/128 Benowa Road, Southport, Queensland.

HIS HONOUR:  That is really your Order 5.

MR COLLINS:  It is.

HIS HONOUR:  I read it in without announcing it, but it would be prudent to announce it.

MR COLLINS:  Yes, Your Honour.

HIS HONOUR:  I direct that the defendant's address for service, as he requests, be 80/128 Benowa Road, Southport, Queensland, 4215.  Thank you, Mr Collins.  Mr Birmingham, this matter can be e-mailed up to you directly to your e-mail address, which will obviate any further difficulty in relation to documentation and would, I am sure, be helpful to you.

That can be arranged by court staff, so that this is directly e-mailed to you.

MR BURMINGHAM:  What is being directly e-mailed, sorry?

HIS HONOUR:  All court documentation applicable to you will be e-mailed to you.

MR BURMINGHAM:  Yes, thank you.

HIS HONOUR:  Being a transcript of this proceeding, and any other documentation.

MR BIRMINGHAM:  Thank you for that, Your Honour.  I just have one other matter.  Just with respect to the costs, but specifically the costs of the plaintiff's application

-------------------------------------------