McAdam v Currumbin Creek Hotel
[2004] QDC 576
•06/12/2004
[2004] QDC 576
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No D716 of 2003
| SHANE PETER McADAM | Plaintiff/ First Respondent |
| and | |
| CAMERON APPO and CARRARA CATERING SERVICES PTY LTD | First Defendant Second Defendant/ |
SOUTHPORT
..DATE 06/12/2004
ORDER
CATCHWORDS: Uniform Civil Procedure Rules r 112, 122, 169, 444, 547 - whether time for statement of loss and damage begins to run anew if amended statement of claim and defence are served - whether "rule 444" letter deficient - costs limited because of unreasonable approaches pursued by parties and/or their solicitors.
HIS HONOUR: This has been a regrettable episode in a piece of litigation which has been bitterly contested. The plaintiff seeks damages in respect of an assault that allegedly occurred at the hands of the first defendant at the hotel of the second defendant, which is the applicant before the Court at the moment.
The application filed on the 4th of November 2004 calls for the provision of a proper statement of loss and damage as required by rule 547 of the UCPR. Sub-rule (1) defines the time when the written statement of loss and damage must be provided signed by the plaintiff and that is within 28 days of the close of pleadings.
A deficient statement of loss and damage was provided by the plaintiff's solicitors under cover of a letter dated 21st of September 2004.
MR PYLE: Your Honour, might I correct you before you go any further. That wasn't the deficient statement that was the initial statement, it wasn't damages, I understand at 21 September 2003.
HIS HONOUR: Sorry. Well, being the initial one and deficient‑‑‑‑‑
MR PYLE: Sorry, your Honour.
HIS HONOUR: The original statement of loss and damage was provided under cover of a letter of 21st of September 2004. Some of the deficiencies, such as the failure to state an hourly rate attributable to the Griffith v. Kerkmeyer claim could not possibly have taken the second defendant's experienced solicitors by surprise or left them in confusion in any relevant way in my view.
Mr Pyle has not sought to rely on those deficiencies but rather on ones which might cause genuine difficulties such as the omission of the address of an employer identified only as "Simply Original - Cabinetmaker" - and the following somewhat astounding claim for future medical expenses:
"The Plaintiff will require ongoing medical expenses in relation to pain, headaches and depression and claims $4,000.00 in respect to future medical expenses As outlined in the report of DR NAME , DR OCCUPATION , the Plaintiff may require a procedure in respect of..., and such a procedure would cost in the vicinity of $ with a recovery period of between . The Plaintiff claims $ in respect of the loss of income for this period, and therefore claims an amount under this heading of $ .(should we keep this in????)
SUBTOTAL4,000.00"
That statement of loss and damage was provided only after a "Rule 444" letter dated 13th September 2004 had been sent to the plaintiff's solicitors; it is in the following terms:
"Dear Sirs,
CURRUMBIN CREEK TAVERN ats McADAM
This letter is written pursuant to Rule 444 of the Uniform Civil Procedure Rules.
THE APPLICANT'S COMPLAINT
The applicant is the Second Defendant. The Second Defendant complains that:-
(a) The Plaintiff is not prosecuting the action:
(b) The Plaintiff has not delivered a Statement of Loss and Damage.THE FACTS
The Plaintiff sues the Defendant for damages for personal injuries as can be observed in the Statement of Claim. The Defendant delivered a Defence to the Statement of Claim. The Plaintiff amended its Statement of Claim. The pleadings have closed. The need for the Plaintiff to deliver a Statement of Loss and Damage has arrived. That rule has not been complied with. The Plaintiff has a cause of action against the First Defendant and is not proceeding with that action diligently. The Second Defendant wants the proceeding to advance.
ORDERS SOUGHT
1. Directions
2. The Plaintiff file and serve a Statement of Loss and Damage:
3. The Plaintiff pay the applicant Second Defendant's costs:
3. Such further orders as the court may seem meet.
TIME TO RESPOND
You have until 13 October 2004 to respond.
Your faithfully
McINNES WILSON
GRANT DEARLOVE LLB LLM MBA
Insurance Litigation Department"
It is conceded that a Rule 444 letter was required, the application coming under Rule 443(c). Mr English for the plaintiff objects that, if technicalities are important, as the parties, or their representatives, have chosen to make them in this litigation, the letter does not comply with Rule 444 because it does not comply with sub-rule (1)(d) which requires the letter to specify "why the applicant should have relief". The relevant information would presumably nominate Rule 547 and the requirements of it.
The recipient solicitor could not have been in any doubt as to the point of the Rule 444 statement. Indeed, as Mr Pyle, appearing for the second defendant points out, without any reference to Rule 547 by number the substance of it is referred to. On the other hand, the structure of the Rule 444 letter carefully follows the structure of the rule and it omits any section specifically devoted to (d).
Following the receipt of a statement of loss and damage the second defendant's solicitors sent a letter of the 6th of October 2004 drawing attention to the deficiencies noted by me and some others; the author's tone in that communication is cheeky and insulting, which regrettably is a characteristic of much of the communication that has gone between the two firms.
The letter asked for a response within a week of its writing "otherwise I will proceed with an application". The application was proceeded with and subsequent to the filing of it on the 12th of November 2004, an updated statement of loss and damage pursuant to Rule 547 was supplied by fax. That is authorised by the rules, in particular 112. However, Rule 122 imposes special requirements of a cover page stating particular matters. There was no cover page. Once again, an experienced litigation solicitor receiving the document would not have been left in any confusion. The point of the rule is presumably to assist inexperienced practitioners, and even more, self-represented litigants who may well need all or some of the rule 122 information.
The new statement of loss and damage was acceptable to the second defendant and its solicitors, so there remained nothing for the parties to fight about except costs - which they embarked upon with the established level of enthusiasm. The second defendant offered to accept dismissal of the application provided that $2,000 was paid on account of costs. The respondent/plaintiff, by his solicitors acknowledging deficiencies in compliance with Rule 547, offered $1,000.
The parties have not been able to agree, so the Court has to decide the costs issue. It is not a case of deciding between $1,000 or $2,000, necessarily; what would ordinarily happen in the Court is that assessment would be ordered of costs to which the second defendant might be adjudged entitled.
Mr Pyle relies on that in his argument to the Court that it should not hold against the applicant its attitude of insisting on what may be a high fixed amount which I am inclined to think would be the case if the comparison is made with what is likely to be allowed by the Registrar of the Court on assessment as at 23rd November 2004 when the $2,000 demand was made, particularly if the District Court scale were applied.
Also lurking here is an argument as to the way in which Rule 169 works. It identifies when pleadings close in terms of that's occurring "14 days after service of the defence", or "(a) if a pleading is served after the defence - on service of the pleading".
Mr English argues that the time for a Rule 444 letter never arrived because following the filing of a statement of claim on 26th March 2004 and a notice of intention to defend and defence on the 26th of May 2004, there has been served an amended statement of claim the 9th of June 2004 and an amended defence on the 18th of August 2004. If Rule 169 may operate twice, the Rule 444 letter was premature as the plaintiff would have had some days yet to deliver a written statement of loss and damage, yet it is difficult to controvert the proposition that such a statement should have been provided 28 days from the filing of the original defence back in May 2004.
The amended statement of claim, although it has been served and pleaded to, has not been filed. It bears a Court stamp, but for some reason the Court has not accepted it. There is no request for trial date in this matter so that, although the Court's leave would have been required to amend the claim, I am unaware of any reason why leave would have been required to amend the statement of claim at the time when the plaintiff sought to do that. Rule 169, as it happens, is not in terms of filing of pleadings but in terms of serving of them. In some cases, although I have no idea if the present is one, the contents of the statement of loss and damage may well be affected by the serving of amended pleadings.
The conclusion that I have come to at the end of the day is that there should be no order as to costs made in this application other than one that the respondent/plaintiff pay $500 towards the costs that the second defendant's solicitors incurred in preparing the application. I think an excessively and unreasonably technical approach was taken, and even so, if anything remotely resembling the courtesies and co-operation which everyone would except of practitioners had been observed here, the second defendant would surely have got what it was entitled to with much less fuss.
On the plaintiff's side there was acknowledgment of that by what seems to me a reasonable offer communicated a week ago. I have expressed the hope that those involved in this litigation can attempt to focus their efforts on what really matters and avoid a repetition of costs wasting exercises like the present one. The outcome is that the application will be dismissed and the plaintiff/respondent will be ordered to pay costs of the applicant fixed at $500.
I grant the plaintiff leave to file the amended statement of claim that I referred to.
The other matter that the application has thrown up concerns Mr Hannay's affidavit which was taken before Mr English, who is a Justice of the Peace. While in times past that might have been an irregularity it is one that Mr Pyle did not raise or seek to take advantage of. Rule 441 now makes it clear that, so far as the UCPR are concerned, the only prohibition is against a party personally taking an affidavit.
Thank you, gentlemen.
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