McNally v APJ Net Pty Ltd

[2006] QDC 491

DISTRICT COURT OF QUEENSLAND

CITATION:

McNally v APJ Net Pty Ltd [2006] QDC 491

PARTIES:

TERENCE RICHARD MCNALLY

Plaintiff

V

APJ NET PTY LTD

Defendant

FILE NO/S:

BD4523/05

DIVISION:

Civil

PROCEEDING:

Application to dispense with Request for trial date

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

24 November 2006

JUDGE:

Nase DCJ

ORDER:

Application dismissed

CATCHWORDS:

COUNSEL:

Mr G. Coveney for the plaintiff/applicant

Mr P. Hackett for the defendant/respondent

SOLICITORS:

Bell Legal Group for the plaintiff/applicant

John-Paul Mould Solicitors for the defendant/respondent

1. This is an application by a plaintiff to dispense with the signature of a defendant on a Request for a Trial Date pursuant to r 469(4) UCPR.

1. The Request for Trial Date document was downloaded electronically from the court’s website, and the necessary details entered on the document before it was saved and transmitted electronically (as an email attachment) to the solicitors for the defendant.

1. The solicitors for the defendant declined (and decline) to complete the Request for Trial Date document transmitted electronically to them.

1. Under the system of electronic lodgement of documents, it is envisaged a party, on receipt of a Request for Trial Date document from the initiating party, will open the document and enter the necessary details before transmitting it on to the civil list manager, District Court (as an email attachment).  The registry will end up with a Request for Trial Date document completed by the parties.  The initiating party will have the saved copy of the document it transmitted electronically to the second party, who, in turn, will have the saved copy of the document it transmitted electronically to the registry.

1. The point taken by the defendant in this case is because the plaintiff did not sign the Request for Trial Date document he cannot bring an application under r 469 (4) to dispense with the defendant’s signature on the Request. Undoubtedly the rule contemplates that the Request for Trial Date document will be signed by the initiating party (r 469(1)).  In the event that another party declines to sign the Request for Trial Date, any party “who signed the request for trial date” may apply for an order dispensing with the necessity for the refusing party’s signature on the Request (r 469(4)).

1. The Request downloaded and completed in this case was unsigned. That it was unsigned is not surprising, as there is no space on the document downloaded for a signature to be endorsed. In that respect, the document, which I was told was downloaded from the court’s website, did not conform in detail with the approved form under the Uniform Civil Procedure Rules 1999 (form 48 Request for Trial Date (version 4)).

1. Form 48 Request for Trial Date (version 4) may be downloaded from the court’s website from the “Civil Procedure Forms” folder where an electronic library of forms is available.

1. I was informed during argument that it is possible for a party to insert an “electronic signature” to a document such as an electronic Request for Trial Date document downloaded by the plaintiff.  In this case, however, there was no space for a signature to be inserted and no “electronic signature” was inserted into the form.  It is therefore unnecessary for me to consider whether insertion of an “electronic signature” is a signature for the purposes of the rule[1].

   [1] “Sign” is defined in the Acts Interpretation Act to include attaching a seal or making a mark (s 36).

1. Mr Coveney argued simply that insistence on a signature (real or electronic) undermines the integrity of the system of electronic lodgement of documents.  I presume that had both parties completed the electronic Request for Trial Date document in this case, and had it been forwarded it to the registry, the Request would have been effective[2].  I understand that thought is of little comfort to Mr Coveney and to the plaintiff.

   [2] R 967(1) (c) permits lodgement of documents by electronic means when authorised by a practice direction. I was not able to locate a practice direction governing the electronic lodgement of Requests for Trial Date.

1. Unfortunately, only a party who has signed a Request for Trial Date document, whether electronic or not, may bring an application to dispense with another party’s signature on the Request.  The rule says exactly that, and I see no way of avoiding the requirement.

1. The application must therefore be dismissed on the technical ground the relevant Request for Trial Date document is unsigned, and the application to dispose with the defendant’s signature is incompetent.  I will draw the problem exposed in this case to the attention of the Chief Judge.

1. As the defendant intends to file a counterclaim, it is unnecessary for me to consider any other aspect of the application.

Order

1. The application is dismissed.