Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd (No. 2)

[2018] QDC 45

DISTRICT COURT OF QUEENSLAND

CITATION:

Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd (No. 2) [2018] QDC 45

PARTIES:

MOHAMMAD SAIDI KADHIM KHALEDI

(Plaintiff/Applicant)

v

JBS AUSTRALIA PTY LTD (ACN 001 062 333)

(Defendant/Respondent)

FILE NO/S:

TD16 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

28 March 2018

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The application is dismissed.

2.   The claim filed in Toowoomba District Court Proceeding No. 16 of 2015 is dismissed.

3.   The Plaintiff/Applicant is to pay the Defendant/Respondent’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – PROCEDURAL MATTERS – where the applicant’s application for an extension of the limitation period failed – where respondent seeks dismissal of claim – where strictly there is no application on foot for the dismissal of proceedings – where rule 371(2)(f) provides the court discretion to deal with the proceeding generally where there has been a failure to comply with the rules – whether appropriate to dismiss claim notwithstanding absence of application seeking that relief

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where applicant commenced proceedings outside of limitation period – where applicant failed in application for extension of limitation period – where applicant’s incapacity to pay costs does not warrant departure from general rule – where applicant to pay the respondent’s costs of an incidental to the application

CASES:

Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd [2017] QDC 143

Oldfield v Mario Verrochi & East Yarra Friendly Society Pty Ltd T/as Chemist Warehouse (No. 2) [2017] QSC 114

LEGISLATION:

Uniform Civil Procedure Rules 1999

COUNSEL:

Written submissions of Mr T.A Neilsen (Applicant)

Written submissions of Dr G.J Cross (Respondent)

SOLICITORS:

Shine Lawyers (Applicant)

Meridian Lawyers (Respondent)

1. The applicant’s application for an extension of the limitation period to the date on which the proceeding was commenced was dismissed.[1]  The parties were directed to file and serve written submissions in respect of any consequential orders to be made in the substantive proceeding and costs. 

   [1]Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd [2017] QDC 143.

1. The respondent seeks orders dismissing the claim and statement of claim and that the applicant pay its costs of and incidental to the application assessed on the standard basis.

1. As to the dismissal of the claim and statement of claim the applicant submits that there is no application on foot for their dismissal.  He submits that there should be no order as to costs.

Dismissal of substantive proceedings

1. The applicant’s submission that there is presently no application on foot for the dismissal of the proceeding is, strictly, correct.[2]  However, that submission either fails to address the issue of consequential orders to be made in the substantive proceeding upon which the court directed submissions to be made, or simply makes the submission that no consequential order should be made because there is no application.

   [2]Rule 31 Uniform Civil Procedure Rules 1999.

1. The proceeding is presently stayed as a consequence of an order of the registrar. The respondent identifies no utility in the proceeding, now stayed and unable to be further pursued, remaining on foot. Rule 371(2)(f) of the Uniform Civil Procedure Rules 1999 provides a broad discretion in the court to make such other order dealing with the proceeding generally as the court considers appropriate where there has been a failure to comply with the rules. In this matter it is appropriate to dismiss the claim[3]  notwithstanding an absence of an application seeking that relief.  It was clearly contemplated in the direction of the court to make submissions about consequential relief in the substantive proceeding.

   [3]It is only the claim, not the statement of claim, which need be dismissed. It is the claim which commenced the proceeding: Rule 8 UCPR.

1. I will order that the claim be dismissed.

Costs

1. The general rule about costs under the UCPR is that they are in the discretion of the court, but follow the event unless the court orders otherwise.

1. The essential basis upon which the applicant seeks to avoid an order of costs is that he is impecunious and has no capacity to pay costs.  I accept that on the evidence before the court on the application that is likely to be so.  However, such an incapacity to satisfy a costs order will not of itself usually be sufficient to warrant a departure from the general rule.[4]

   [4]Oldfield v Mario Verrochi & East Yarra Friendly Society Pty Ltd T/as Chemist Warehouse (No. 2) [2017] QSC 114 at [9].

1. The applicant having commenced proceedings outside the limitation period, it was always likely that he would be required to apply for an extension.  Having failed in that application, he has failed to demonstrate why the court should depart from the general rule.

1. In my view, costs should follow the event.  The applicant should pay the respondent’s costs of and incidental to the application on the standard basis.

Orders

1.          The application is dismissed.

2.          The claim filed in Toowoomba District Court Proceeding No. 16 of 2015 is dismissed.

3.          The plaintiff/applicant is to pay the defendant/respondent’s costs of and incidental to the application to be assessed on the standard basis.