Nerbas v Buick
[2013] QDC 314
DISTRICT COURT OF QUEENSLAND
CITATION:
Nerbas v Buick & Anor [2013] QDC 314
PARTIES:
KELSEY JAMES NERBAS
(plaintiff)
v
NICK SAMUEL BUICK
(first defendant)
AND
DANIELLE RENEE NOLAN
(second defendant)
FILE NO/S:
3387/12
DIVISION:
District Court
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
28 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
01/05/2013
JUDGE:
Samios DCJ
ORDER:
- Defendants, no later than 4 pm, 1 November 2013, to file and serve upon the plaintiff by registered mail, affidavits with their further grounds for resisting the plaintiff’s claim in accordance with their solicitor’s undertaking given to his Honour Judge McGill on 2 August 2013.
CATCHWORDS:
PRACTICE - Service - where the plaintiff seeks orders against the defendant for the service of the defendant’s supplementary defence- whether an order should be made that gives effect to the undertaking by the defendants by their solicitor
COUNSEL:
Plaintiff was self-represented
Mr Hughes (solicitor) for first and second defendant
SOLICITORS:
Plaintiff was self-represented
McInnes Wilson Lawyers for first and second defendant
The application I have before me is one by which the plaintiff seeks orders against the defendants for the service of what he has described as “their supplementary defence”. A letter that he has sent to the registrar, dated the 14th of October 2013, states that the plaintiff requires 10 minutes to seek a court order from a sitting judge that the defendant serve him with their supplementary defence despite his numerous requests to them directly. He says in the letter that the time is a crucial element in this case as he has a criminal trial commencing on 4 November 2013 which he corrected when he appeared before me, to 11 November 2013 in the Supreme Court that is to last for about five weeks.
He wants to have this hearing – that is that he be provided with the supplementary defence – dealt with by then. The alternative, he says, is it would save a great deal of time and money if the registrar would kindly mail him the defendants’ presumably filed supplementary defence in late August, early September 2013. In that respect, he makes an assumption that the defendants went ahead and filed the supplementary defence, that he contemplated would be filed pursuant to an order that had been made by a district court judge on the 2nd of August 2013. He refers, in the letter, to his Honour, Judge Horneman-Wren, however the examination of the order sheet that I have made in the file indicated that it was his Honour, Judge McGill, who made the relevant order on the 2nd of August 2013 in this matter.
It is important to note what his Honour Judge McGill did order, the important one being order 2, “The defendants by their solicitor, have undertaken to file affidavits with their further grounds for resisting the plaintiff’s claim within 28 days”. The previous order that his Honour made was that the jurisdiction of the court be established. I have not gone into that on the hearing before me today. Presumably, the plaintiff must rectify as his Honour ordered, that the claim in the statement of claim be amended to insert in the claim for relief after the claim for damages, the words “not exceeding the monetary limit of the jurisdiction of the district court”.
As I have said, it is unnecessary for me, on the plaintiff’s application today to deal with that. That is a matter for him to take up as his Honour ordered. My concern is though that the plaintiff thought that in due course, after the 2nd of August 2013, he would receive an amended defence – or what he called a supplementary defence. It does appear from the order sheet, that in the hearing before his Honour, Judge McGill on the 2nd of August 2013, the defendants, by their solicitor, gave an undertaking to file affidavits with their further grounds for resisting the plaintiff’s claim within 28 days. As it seems, his Honour then went ahead and dismissed the application.
In my opinion, the plaintiff is right to seek an order that gives effect to what appears to have been undertaken by the defendants by their solicitor. Mr Hughes, who appears on behalf of the defendants today, opposed an order being made that required a supplementary defence being filed and served within seven days on the basis that the criminal proceedings the plaintiff is involved in, may result in him being convicted of offences which would make the proceedings that I’m concerned with, nugatory, and that he might be deported. And even if he were found not guilty, there is no urgency for the defendants to incur costs in providing the supplementary defence.
In my opinion, the proceedings should progress in accordance with what appears to have been the result of the hearing before his Honour, Judge McGill, on the 2nd of August 2013. I’m not satisfied that what Mr Hughes has submitted to me today ought to make me stay my hand. I particularly come to that view because an undertaking was given that would have seen this matter progress such that the step contemplated in the second order of his Honour Judge McGill would have brought the matter to, basically, the end of August. All of September has been lost. Now, almost all of October has been lost. No application was made by the defendants to be relieved of their obligation to comply with the orders of Judge McGill.
No affidavit has been sworn to that they do not have the resources to meet the obligation. Therefore I have come to the view that the defendants should be directed to comply with their undertaking with the view to the court taking other action if this direction is not complied with if it sought by the plaintiff. And therefore I direct the defendants, no later that 4 pm, 1 November 2013, to file and serve upon the plaintiff by registered mail, affidavits with their further grounds for resisting the plaintiff’s claim in accordance with their solicitor’s undertaking given to his Honour Judge McGill on 2 August 2013. I do not see Mr Nerbas making any claim for costs on this application and it would appear he would not be able to make a claim for costs.
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