Queensland Building Services Authority v Mahony

[2012] QDC 123

[2012] QDC 123

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1996 of 2009

QUEENSLAND BUILDING SERVICES AUTHORITY	Applicant
and
GERARD WILLIAM MAHONY	Respondent

BRISBANE

..DATE 18/04/2012

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 5, r 171, r 293, r 389

Unsuccessful application by defendant to strike out statement of claim - grounds include delay by plaintiff in furnishing expert evidence, admissibility of such evidence relied on to date by persons allegedly unqualified and alleged concession by plaintiff's lawyers that there was no case fit for trial.

HIS HONOUR:  What's before the court is the self-represented defendant Mr Mahony's application filed 27th of March 2012 seeking that the court strike out the plaintiff's pleadings, being the statement of claim in the form of an amended statement of claim relied on until today and the plaintiff's reply.

The amended statement of claim is superseded today by a further amended statement of claim in the form of Exhibit 1.  It has a single amendment which, on any view, is of a minor technical nature.  It describes a couple, Mr and Mrs H, who had previously been referred to as owners of a property at Rainbow Beach, as the directors of the company which is now said to be the owner of that property.  Mr and Mrs H were one of four individuals or couples who, according to the pleading, entered into contracts with the defendant for building work and made complaints to the plaintiff of dissatisfaction with the quality of it.  The outcome of the plaintiff's investigations was that the doing of rectification work was approved and contracts were let after some kind of tendering process; the successful tenderers/contractors did the work and were paid a total approaching $200,000. 

The plaintiff in the proceeding seeks to vindicate its rights under statute or otherwise to recover what it's paid against the defendant.  It had success before Judge Clare on the 29th of November last year in striking out a series of defences which the defendant had put in.  He was given leave to re‑plead.  Judge Clare's order dealt with disclosure to follow the close of pleadings and required that any expert report be filed and served by 6 February 2012.  The following parts of her order required mediation which occurred with the assistance of Catherine Muir of counsel.  Her certificate establishes that mediation occurred on the 13th of February 2012 and that the dispute between the parties had not resolved.  It seems to have emerged in that process that the amendment now made to the amended statement of claim appeared appropriate.

At one point in this afternoon's argument, my impression was that Mr Mahony was arguing that the effect of Judge Clare's order was that the parties' dispute was not to proceed at all beyond the mediation, so that given the failure of it the plaintiff's claim had effectively been brought to an end.  That is plainly an untenable construction to put on things.

Mr Mahony's application refers to "failure to respond in reasonable time with amended statement of claim agreed both parties' mediation 13-2-2012".  The anticipated amendment is now available.  In my opinion, the delay of a couple of months in this context is not of such dimensions that it could possibly justify striking out the existing pleadings or indeed any element of punishment of the plaintiff.  It shouldn't be overlooked how minor is the amendment.

Mr Mahony relies on the philosophy of the UCPR as set out in rule 5 and the obligations of litigants to act expeditiously and the like. He has also placed reliance on Lord Woolf's well-known report to the Lord Chancellor of the UK on access to justice in that vein.

As an alternative to punishing the plaintiff by striking out pleadings on a delay basis, which is obviously unpromising given the two-year benchmark in rule 389, Mr Mahony presented an argument that theoretically could be pertinent under rule 171, which is referred to in the application, to the effect that the claim is hopeless.  This would have similar features to a similar application under rule 293. 

The argument is presented in reliance on Mr Mahony's contention that supposed experts in building on whom the plaintiff has relied in this matter (and he says in other matters) are unqualified and that no reliance should be placed on their views.  It may be in that context that the possibility of further expert evidence was contemplated on the 29th of November 2011.  The plaintiff is forced to acknowledge that it is in default in respect of Judge Clare's direction that any expert report be filed and served by 6th of February 2012.  It does desire, it seems, to appoint an expert rather than rely on evidence that might be given by persons who've been brought in previously in the long history of these matters which goes back up to eight years.

Mr Stretton seeks to take advantage of the parties being here to have directions made to advance the proceeding towards a hearing.

The suggestion that the claim is hopeless is said to be bolstered by the following statement in a letter dated yesterday which the plaintiff's solicitors sent the defendant: "At this stage we're engaging an independent builder to conduct inspections of the properties subject to our client's claims”.  A further report is said to be “necessary in order to progress to trial in this matter."  Mr Mahony refers to the "fundamental importance" of this and says it indicates that the plaintiff, without some future expert brought in, is simply devoid of any worthwhile claim.  That interpretation rather flies in the face of the preceding sentence in the letter rejecting Mr Mahony's position that the plaintiff has any difficulty in maintaining its cause of action.

The court would not be justified in striking out the statement of claim which is tantamount to striking out the entire claim unless it's clearly demonstrated to the court's satisfaction that the claim is without any prospects of success as to any part of it.  We're nowhere near that situation this afternoon. 

The proceeding ought to be advanced by directions given now.  It's convenient to make them in accordance broadly with Mr Stretton's document with some amendment; that's been initialled by me and the court's order will be in terms of the initialled draft.  It provides that the defendant's application filed on the 27th of March 2012 be dismissed; that the defendant file and serve a fourth amended defence responding to today's further amended statement of claim by 4 p.m. on 2 May 2012; that the plaintiff file and serve any reply by 4 p.m. on 16 May 2012; that any subsequent disclosure resulting from the amendments be completed by 21 May 2012; that any expert report be filed and served by 4 June 2012; that there be liberty to apply, on giving three days' notice to the other party; that the defendant pay the plaintiff's costs of and incidental to the application to be assessed on the standard basis.  Order as per initialled draft.

MR STRETTON:  Thank you, your Honour.

RESPONDENT:  Your Honour, I object to that cost.

HIS HONOUR:  Well, you sought to strike them out and you didn't succeed.

RESPONDENT:  Look, I think you've done pretty well.

HIS HONOUR:  Yes, all right.

MR STRETTON:  Thank you, your Honour.

HIS HONOUR:  Thanks, everyone.

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