Pearce v Mango Hill Skirmish

[2010] QDC 326

[2010] QDC 326

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2348 of 2008

RICK PEARCE	Plaintiff
and
MANGO HILL SKIRMISH	Defendant

BRISBANE

..DATE 13/08/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r 225, r 280, r 444

Guillotine order made where plaintiff failed to comply with a consent order for disclosure - claim to be dismissed if failure persisted - court accepted applicant defendant's procedure of relisting applications on which the consent order was made rather than file a new application

HIS HONOUR:  The court makes an order in terms of the initialled draft which, rather than dismiss the plaintiff's claim for failure to complete disclosure by producing copies of disclosed documents as permitted by rule 225 or rule 280, is a guillotine order allowing the plaintiff additional time until the expiration of 14 days from service of this order on him to comply with the court's order of 18 June 2010 providing for disclosure to be completed within seven days.  That order was one made by consent.

I have checked the file and confirmed that the applicant/defendant's solicitor, Mr Messina, had been requested by the plaintiff's solicitors to represent the plaintiff as well as his own client for purposes of placing before the court the signed consent order.

Since that time, notwithstanding continuing efforts of Mr Messina, none of the relevant documents has been produced.  Indeed, nothing has been forthcoming from the plaintiff's side.

The case handed up, Mango Boulevard Pty Ltd v Spencer [2008] QSC 117, is a strong case because it was a guillotine order made against the defendant, whereas Mr Byrne representing the applicant/defendant here is seeking (perhaps as his less favoured form of relief) a guillotine order which will put an end to proceedings by a delinquent plaintiff.

It has always seemed to me that a delinquent plaintiff commands less sympathy than a delinquent defendant who, one may theorise, has been brought to court to defend an improper claim and who, in any event, may have much to say about the quantum of any judgment.

Mr Byrne referred me to Peldan v Jones [2008] QDC 111 and Interactco Limited v. GDC Global Digital Cash Pty Ltd [2009] QDC 257. The draft order he has handed up he says is modelled on that made in the former.

The material before the court shows that the appropriate preliminaries, such as the sending of a rule 444 letter, have been attended to by Mr Messina.  It also shows service by facsimile transmission of notice of this application.  Indeed, Mr Messina, having become doubtful as to whether there had been service advising a hearing on 5 August, made sure that clear notice of today's hearing was provided.

The last thing I want to comment on is that the process adopted has been to re-list the application which came before Judge Samios.  My impression is that the conventional practice would be the filing and service of a new application rather than having the existing application re-listed.

On reflection, I do not see anything wrong in the procedure adopted, even in the absence of liberty to apply being expressed in Judge Samios's order.  It may be a useful precaution to make that inclusion in the future if the streamlined process adopted is to be resorted to again.  I expect that it has some advantages by way of reducing costs.  The obvious one is that there will not be any costs incurred or sought for the preparation of a follow-up application.

...

HIS HONOUR:  Paragraph 3 will say “the plaintiff pay the defendant's costs of and incidental to today's hearing, as agreed or assessed.”

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