Queensland Medical Centres Pty Ltd v Smith

[2011] QDC 220

[2011] QDC 220

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3250 of 2010

QUEENSLAND MEDICAL CENTRES PTY LTD	Plaintiff
and
ALEX SMITH	Defendant

SOUTHPORT

DATE 22/08/2011

ORDER

HIS HONOUR: This is an application pursuant to Rule 374 of the Uniform Civil Procedure Rules. It is brought on the plaintiff's failure to comply with the consent order made by the Deputy Registrar on the 26th of May 2011.

The background is important.  The plaintiff, without solicitors, filed a claim and statement of claim in this Court on the 8th of November 2010.  The claim is questionable in that the allegations are broad and vague. 

The defendant filed a conditional notice of intention to defend on 7 December 2010.  The plaintiff, apparently accepting the defects in the claim and statement of claim filed on 8 November 2010, consented to an order that the plaintiff file and serve on the defendant an amended statement of claim within 21 days of the 26th of May 2011.  The plaintiff has failed to do so.  It appears the plaintiff has solicitors but does not seem to have those solicitors on the record.  I am satisfied the plaintiff has been given notice of this application. 

It is proper to make an order because of the default of the plaintiff in filing and serving on the defendant an amended statement of claim within 21 days of the 26th of May 2011.  It is submitted I ought to actually give judgment against the plaintiff.  I decline to do so.  I do not consider the stage has been reached to do so.  However I am of the opinion that the claim and statement of claim filed on 8 November 2010 should be struck out.  I order the claim and statement of claim filed 8 November 2010 be struck out.

I also order the plaintiff to pay the defendant's costs of the proceedings, including this application, to be assessed on the indemnity basis.  The plaintiff has simply failed to provide a proper statement of claim, and appear by solicitors.  It has given no explanation for its failure to do so to date.

They will be the orders on this application.

HIS HONOUR:  Nothing further, Mr McGlade?

MR MCGLADE:  Might I ask your Honour to entertain something else?

HIS HONOUR:  Yes.

MR MCGLADE:  The possibility of a guillotine order in the - just because if your Honour's going to give them another chance, perhaps give them 28 days, with self-executing order for judgment.

HIS HONOUR:  Yes.  No, I won't do that.

MR MCGLADE:  Thank you, your Honour.  That's my submission.

HIS HONOUR:  Yes.  Thank you.

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