MQF v Corry

[2000] QSC 416

SUPREME COURT OF QUEENSLAND

CITATION:	MQF v Corry [2000] QSC 416
PARTIES:	MQF (ACN 003 815 272) (Defendant) v MONICA ANN CORRY (Plaintiff)
FILE NO/S:	S4724 OF 1996
DIVISION:	Trial Division
DELIVERED ON:	21 January 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 January 2000
JUDGE:	Muir J
CATCHWORDS:	PRACTICE – leave to appeal against decision of deputy registrar renewing writ – service deficient and writ not accompanied by required documentation – inherent jurisdiction to review ex parte determinations – court entitled to have regard to any matters including further evidence – appeal dismissed.
COUNSEL:	Mr M. Spry for the plaintiff. Mr R.N. Alldridge for the defendant.
SOLICITORS:	Shine Roche McGowan for the plaintiff. Mullins & Mullins for the defendant.

1. The applicant defendant seeks leave to appeal against a decision of the Deputy

   Registrar on 24 November 1999 renewing the writ in this matter.

2. The writ was first issued on 7 June 1996 in respect of personal injuries allegedly

   sustained by the plaintiff on 10 June 1993. On 3 June 1998 the applicant’s solicitors

   filed a summons, returnable on 18 June 1998, to renew the writ. The summons was

   adjourned. On 10 September 1998 the defendant’s solicitors wrote to the plaintiff’s

   solicitors advising that the defendant would not oppose the plaintiff’s application to renew the writ. On 17 March 1999 an order was made renewing the writ from 7

   June 1998 to 7 June 1999.

3. On 15 April 1999 the plaintiff’s solicitors served a copy of the writ on the

   defendant. However service was deficient as the registered office of the defendant

   was in New South Wales and the copy of the writ was not accompanied by the

   document in form 1 required by the Service and Execution of Process Act.

4. On 11 June 1999 the defendant’s solicitors wrote to the plaintiff’s solicitors

   asserting that the plaintiff’s solicitors had failed to comply with s 185 of the

   Workers’ Compensation Act 1990 and with the provisions of the Service and

   Execution of Process Act in relation to service and that, in order to cure such

   irregularities, the writ required renewal.

5. On 20 July 1999 the plaintiff’s solicitors wrote to the defendant’s solicitors

   informing them that they would apply to renew the writ and that they proposed to

   effect service on the defendant’s solicitors. It seems that when the plaintiff’s

   solicitors were lodging the application for renewal and affidavit in support, they

   were informed by the Deputy Registrar that the application did not need to be

   formally made and that it could be done ex parte. The applicant’s solicitors

   permitted the Deputy Registrar to proceed to make an order renewing the writ

   without fulfilling their previously stated intention of serving the respondent’s

   solicitors.

6. It is submitted on behalf of the defendant that leave to appeal should be granted as –

1.	No evidence was placed before the Registrar suggesting that any of the possible witnesses to the plaintiff’s injury still had any memory of the relevant events;
2.	the defendant was not advised of the hearing date despite being informed that the application would be served;
3.	the Registrar failed to properly exercise his discretion by failing to take into account possible prejudice to the defendant and failing to require the plaintiff to invite the defendant to appear at the hearing;
4.	there is arguable error on the part of the Registrar and improper conduct on the part of the plaintiff’s solicitors such as would warrant leave being given.

1. It is argued on behalf of the plaintiff that the decision by the Registrar under Rule

   24 of the Uniform Civil Procedure Rules is not a decision made on an application

   within the meaning of s 791 of the Rules. It follows, according to the argument, that

   there is no right of appeal and the Registrar’s decision is unreviewable.

2. A related argument advanced on behalf of the respondent was that, as the

   application to the Registrar was ex parte, the applicant was not “a party to an

   application” within the meaning of r 791 and thus not able to appeal.

3. It is not necessary for me to decide either of the points raised on behalf of the

   respondent in order to resolve this matter. As the application before the Registrar

   was ex parte, there is an inherent jurisdiction vested in me to reconsider and review

   the earlier determination: Re QRP Constructions Pty Ltd (1973) Qd R 157; Farrell

   v Delaney (1952) 52 SR (NSW) 236; In the Estate of Perkins & Hutchinson (1968)

   2 QSCR 1 and Re Reid Murray Acceptance Ltd [1964] VR 82. On such an

   application the Court is entitled to have regard to any matters, including further evidence, which would have been relevant and admissible on the original hearing:

   Farrell v Delaney (supra).

4. It is not irrelevant to the above conclusion that the registrar is an officer of the

   Court and under the direction of the judges in carrying out the functions entrusted to

   him or her. See e.g. Byrnes v James (1889) 3 QLJ 165 and South and Geldard v

   Stevenson [1985] 2 Qd R 593.

5. Whilst I can see no substance in the contention that the registrar’s decision was not

   a decision on an application, I express a tentative view that r 791 has no application

   to ex parte applications. Sub-rule 1 provides –

   (1) A party to an application who is dissatisfied with a decision of a judicial registrar or registrar on the application may, with the leave of the Court, have the application re-heard by the Court.”

6. It is plain, I think, that the words “the application”, in both cases, mean the

   application to which reference is first made in the sub-rule. It is not necessary for a

   party to a proceeding to be a party to an application brought in the proceeding. It

   will often be the case that one party seeks interlocutory relief against one (or more)

   of a number of respondents but not against all. Where an application is ex parte, it is

   made by one party without notice to and in the absence of the other. The other party

   may well be adversely affected by the application but it would not normally be

   described as being a party to it. Rule 791(1) thus appears to confer a right of appeal

   from a decision made on the hearing of an application to persons who were parties

   to that application.

7. But even if I had concluded that the defendant had a right of appeal, I would have

   refused leave to appeal. A writ may be renewed under r 24(2) where “the registrar is

   satisfied that reasonable efforts have been made to serve the defendant” or where

   “there is another good reason to renew the claim”.

8. In this case there was an attempt at service but it was defective as a result of a

   mistake by the plaintiff’s solicitors. They did not advert to the fact that the

   defendant’s registered office was in New South Wales. The defendant was aware of

   the attempt to effect service and seized on the plaintiff’s solicitors mistake in order

   to attempt to gain a forensic advantage. Without suffering the slightest practical

   disadvantage, the defendant could have pointed out the plaintiff’s procedural errors

   and offered to consent to any order necessary to rectify the problems on the

   plaintiff’s undertaking to pay its costs and to proceed in the action with due

   diligence.

9. In my view the deputy registrar was entitled to conclude that reasonable efforts had

   been made to serve the defendant. I so conclude. The foregoing narrative also

   reveals that “there is another good reason to renew the claim”, namely, the lack of

   irretrievable prejudice caused to the defendant by the plaintiff’s accidental failure to

   effect proper service.

10. It is argued on behalf of the defendant that there will be prejudice through the

    effluxion of time of the nature identified by McHugh J in Taylor v Brisbane South

    Regional Health Authority (1996) 186 CLR 541. It is apparent though that the

    plaintiff gave timely notice of her claim (as an injured employee). There is no

    suggestion that the claim was not investigated promptly or that there is any particular difficulty with the availability of witnesses, the reliability of

    contemporaneous records or the actual recollection of witnesses. It is not suggested

    that the delay gives rise to problems with the expert medical evidence. Moreover

    the subject facts appear to be relatively simple.

[17] Accordingly, I dismiss the appeal and refuse the relief sought..

1. The fact that the plaintiff’s solicitors failed to comply with an intimation given by

   them to the defendant’s solicitors, is not something which I can take into account in

   deciding this matter. In order to rely on such conduct it, the defendant would need

   to show that it gave rise to some legal right or remedy such as grounding an

   estoppel.

2. The defendant applicant has been unsuccessful but the application has been

   provoked by the failure on the part of the plaintiff to comply with the Rules and

   statutory requirements.

[20] I propose to make no order as to costs.