Mohareb v Lambert & Rehbein (SEQ) Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Mohareb v Lambert & Rehbein (SEQ) Pty Ltd [2010] QSC 126

PARTIES:

NADER MOHAREB

Plaintiff/Respondent

v

LAMBERT & REHBEIN (SEQ) PTY LTD (ACN 126 939 768)

First Defendant/Applicant

FILE NO/S:

BS 4544 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2010

JUDGE:

White J

ORDER:

1.          Strike out the plaintiff’s Third Further Amended Statement of Claim filed 21 January 2010.

2.          The plaintiff’s proceedings against the first defendant be stayed.

3.          The plaintiff pay the first defendant’s costs of and incidental to the application on the indemnity basis.

CATCHWORDS:

PRACTICE AND PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – Whether the plaintiff’s Third Further Amended Statement of Claim should be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – Whether the plaintiff’s proceedings should be permanently stayed

Trade Practices Act 1974, s 52, s 53B
Uniform Civil Procedure Rules 1999, r 150, r 171

du Boulay v Worrell & Ors [2009] QCA 63, considered
Fubilan Catering Services Ltd v Compass Group (Aust) Pty Ltd [2007] FCA 1205, cited
O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455, discussed
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409, cited
Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142, cited
Sheldrick v WT Partnership (Aust) Pty Limited (1998) 89 IR 206, referred to

COUNSEL:

JW Merrell for the first defendant/applicant
The plaintiff/respondent appeared on his own behalf

SOLICITORS:

Courtice Neilsen for the first defendant/applicant

1. By application dated 4 March 2010, the first defendant (the only remaining of four defendants) sought orders that the plaintiff’s Third Further Amended Statement of Claim (“3FASOC”) filed 21 January 2010 be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), that his claims against the first defendant be permanently stayed, and for costs on the indemnity basis.

1. On 30 April 2009, the plaintiff, who is an engineer, commenced proceedings against Lambert & Rehbein Pty Ltd, on the basis that it was the entity with which he had entered into a contract of employment but it was the present first defendant who employed the plaintiff. That error was subsequently corrected. The first defendant carries on the business of consulting engineers. Initially the plaintiff sued, as the second, third and fourth defendants, the directors of the company, as well as the company, for breach of his contract of employment and damages for breaches of sections 52 and 53B of the Trade Practices Act 1974 (Qld).

Background

1. In July 2008 the plaintiff was interviewed for a position with the first defendant as a structural engineer.  He was then carrying on his own engineering business in New South Wales.  The plaintiff alleges…