Qubeck v Hicks - [2018] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION:

Qubeck v Hicks [2018] QDC 193

PARTIES:

JASON QUBECK

(Plaintiff)

v

DANIEL FRANCIS HICKS
(Defendant)

FILE NO/S:

3175/2015

DIVISION:

Civil

PROCEEDING:

Application (to set aside renewal of claim)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 August 2018 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2018

JUDGE:

Koppenol DCJ

ORDER:

1. Application dismissed.

2. Plaintiff’s costs of and incidental to the application are Plaintiff’s costs in the cause.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME EXTENSION AND ABRIDGMENT - RENEWAL OF CLAIM - CONDUCT OF PARTIES - Plaintiff applied to Registrar under rule 24(2) UCPR to renew personal injuries claim – Plaintiff’s lawyers informed Defendant’s lawyers of claim, cause of action, negligence alleged, supporting evidence, date the claim and statement of claim filed and Court file number – steps taken under Personal Injuries Proceedings Act – parties’ lawyers prepared for compulsory conference - mandatory final offers to settle exchanged - claim never served personally on Defendant despite lawyers’ requests – Registrar renewed claim twice – six years since accident – not contended that lapse of time a real impediment to fair presentation of Defendant’s case - Plaintiff’s claim statute-barred if renewal set aside – whether “other good reason” to renew claim - whether renewal should be set aside

Uniform Civil Procedure Rules, r 24(2)
Personal Injuries Proceedings Act 2002

The IMB Group Pty Ltd (in liq) v ACCC [2007] 1 QdR 148 (CA), applied
McIntosh v Maitland [2016] QSC 203, considered
King v Gunthorpe [2018] QSC 1, considered

COUNSEL:

R Oliver for the plaintiff

P Telford for the defendant

SOLICITORS:

Bartels Lawyers for the plaintiff

Carter Newell Lawyers for the defendant

The registrar renewed the respondent/plaintiff’s claim (for damages for personal injuries) on two occasions. The applicant/defendant applies now to set aside those ex parte orders.

I am of the opinion that the application should be dismissed.

Rule 24(2) of the UCPR provides that if a claim has not been served on a defendant within one year, the registrar may renew the claim if the registrar is satisfied that (a) “reasonable efforts have been made” to serve the defendant or (b) there is “another good reason” to renew the claim. Requirement (a) does not apply because it was accepted that reasonable efforts were not made to serve the defendant. It was requirement (b) upon which Mr Oliver of Counsel for the respondent/plaintiff relies.

The relevant accident is alleged to have occurred on 16 August 2012. The plaintiff said that he suffered a physical injury when he slipped while walking downstairs at the defendant’s boarding house. A witness statement was obtained by the plaintiff’s solicitors from a Mr Cummings, who allegedly observed the defendant lying at the bottom of the steps. He said that he found the plaintiff unconscious on the ground at the bottom of the steps near the leaky hot water service after slipping on a greasy substance on the white-tiled floor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qubeck v Hicks

Details

AGLC: Qubeck v Hicks [2018] QDC 193
Case: [2018] QDC 193
Decision Date: 29 August 2018 (ex tempore)

CaseChat Overview and Summary

In the case of Qubeck v Hicks, the plaintiff sought to renew a personal injuries claim under rule 24(2) UCPR, after the initial claim had lapsed. The matter was before the court to determine whether the renewal should be set aside. The plaintiff had informed the defendant’s lawyers of the claim, the cause of action, the alleged negligence, supporting evidence, the date of filing, and the Court file number. Both parties' lawyers had prepared for a compulsory conference and exchanged final settlement offers. Despite multiple requests from the lawyers, the claim had never been personally served on the defendant. The Registrar had renewed the claim twice, and the accident had occurred six years prior. The plaintiff's claim would be statute-barred if the renewal were set aside, so the court needed to determine whether there was "other good reason" to allow the renewal.

The court considered whether the delay in personally serving the claim on the defendant constituted a significant impediment to the defendant’s case, and if there were other compelling reasons to allow the renewal. The plaintiff argued that the delay did not significantly impede the defendant's ability to present a fair defence. However, the court found that the lack of personal service on the defendant, despite repeated requests, was a critical factor. The court also noted that the significant passage of time since the accident was not argued to be a real impediment to the defendant's case. Given these factors, the court concluded that there was not a sufficient "other good reason" to renew the claim.

The court dismissed the plaintiff's application to renew the claim, highlighting that the absence of personal service on the defendant, despite requests, was a significant failing. The court ruled that the plaintiff’s costs of and incidental to the application were to be borne by the plaintiff. This decision underscores the importance of adhering to procedural requirements, particularly in ensuring that all parties are properly served with relevant documents in a timely manner.

Orders

Orders of the court

1. Application dismissed.

2. Plaintiff’s costs of and incidental to the application are Plaintiff’s costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Qubeck v Hicks [2018] QDC 193
PARTIES:	JASON QUBECK (Plaintiff) v DANIEL FRANCIS HICKS (Defendant)
FILE NO/S:	3175/2015
DIVISION:	Civil
PROCEEDING:	Application (to set aside renewal of claim)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 August 2018 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2018
JUDGE:	Koppenol DCJ
ORDER:	1. Application dismissed. 2. Plaintiff’s costs of and incidental to the application are Plaintiff’s costs in the cause.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME EXTENSION AND ABRIDGMENT - RENEWAL OF CLAIM - CONDUCT OF PARTIES - Plaintiff applied to Registrar under rule 24(2) UCPR to renew personal injuries claim – Plaintiff’s lawyers informed Defendant’s lawyers of claim, cause of action, negligence alleged, supporting evidence, date the claim and statement of claim filed and Court file number – steps taken under Personal Injuries Proceedings Act – parties’ lawyers prepared for compulsory conference - mandatory final offers to settle exchanged - claim never served personally on Defendant despite lawyers’ requests – Registrar renewed claim twice – six years since accident – not contended that lapse of time a real impediment to fair presentation of Defendant’s case - Plaintiff’s claim statute-barred if renewal set aside – whether “other good reason” to renew claim - whether renewal should be set aside Uniform Civil Procedure Rules, r 24(2) Personal Injuries Proceedings Act 2002 The IMB Group Pty Ltd (in liq) v ACCC [2007] 1 QdR 148 (CA), applied McIntosh v Maitland [2016] QSC 203, considered King v Gunthorpe [2018] QSC 1, considered
COUNSEL:	R Oliver for the plaintiff P Telford for the defendant
SOLICITORS:	Bartels Lawyers for the plaintiff Carter Newell Lawyers for the defendant