SUPREME COURT OF QUEENSLAND
CITATION:
Quinlivan v Konowalous & Ors [2019] QSC 285
PARTIES: MICHAEL WILLIAM QUINLIVAN
(plaintiff)
v
ANDREW KONOWALOUS(first defendant)
SPECTRUM IMAGING PTY LTD
ACN 143 919 395
(second defendant)NICHOLAS MACZYSZYN
(third defendant)ANTHONY GOLLE
(fourth defendant)MARK ILLGUTH
(fifth defendant)FILE NO/S:
2726 of 2017
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 November 2019
DELIVERED AT:
Brisbane
HEARING DATE:
21 February 2019
JUDGE:
Davis J
ORDERS:
1. The order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;
2. The Claim is dismissed;
3. The parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;
4. The question of costs will be determined on any written submissions received and without oral hearing.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff commenced proceedings against the defendants for defamation, injurious falsehood and tortious conspiracy – where the Claim and Statement of Claim were not served, and after 12 months the Registrar renewed the claim for a further 12 months – where the Claim and Statement of Claim were ultimately served some 10 months subsequent to the granting of the extension – where the second defendant made application to have the order of the Registrar extending the period for service of the claim for 12 months set aside – whether there was a good reason to renew the claim
Defamation Act 2005 (Qld), s 14, s 30
Health Practitioner Regulation National Law (Queensland), s 140, s 142, s 190A, s 237
Limitation of Actions Act 1974 (Qld), s 10AA, s 32AUniform Civil Procedure Rules 1999 (Qld), r 5, r 16, r 22, r 24, r 150, r 667
Aon Risk Services Australia Limited v Australia National University (2009) 239 CLR 175, cited
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, cited
Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287, followed
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, cited
Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23, cited
EDIS Service Logistics Pty Ltd v PKF East Coast Practice and Ors [2018] QSC 262, cited
Expense Reduction Analysis Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 253 CLR 303, cited
Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy & Ors [2010] QCA 270, followed
IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, followed
Jones v Jebras and Hill [1968] Qd R 13, cited
King v Gunthorpe & Ors [2018] QSC 1, followed
McIntosh & Anor v Maitland & Ors [2016] QSC 203, followed
Muirhead v Uniting Church in Australia…
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- Case
- [2019] QSC 285
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether there was a sufficient basis for the Registrar to extend the period for the service of the claim under Rule 22 of the Uniform Civil Procedure Rules 1999 (UCPR). The court had to determine if the Registrar's decision to renew the claim for an additional 12 months was justified, considering that the claim and statement of claim were ultimately served 10 months after the extension was granted. The defendants argued that the renewal was not supported by a good reason, and therefore, the court should set aside the Registrar's order.
The court reviewed the circumstances surrounding the renewal and considered the factors outlined in the UCPR. It examined whether reasonable efforts were made to serve the claim or if there was another good reason to extend the period. The court concluded that the renewal was not justified as the plaintiff had not shown a compelling reason for the delay in serving the claim. Consequently, the court set aside the Registrar's order extending the service period and dismissed the claim. The court also directed the parties to submit written submissions on costs by a specified date, with the final decision on costs to be made based on the written submissions without the need for an oral hearing.
Orders
Orders of the court
1. The order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;
2. The Claim is dismissed;
3. The parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;
4. The question of costs will be determined on any written submissions received and without oral hearing.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Rule 22 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for the issue of a claim. Rule 24 provides that the claim remains in force for one year. That rule is in these terms:“24 Duration and renewal of claim(1) A claim remains in force for 1 year starting on the day it is filed.(2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.(3) The claim may be renewed whether or not it is in force.(4) However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.(5) Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.” The present application seeks to overturn the decision of the Registrar who renewed the claim. There are three sources of power to review the decision; r 16(d), r 667(2)(a) and the inherent jurisdiction of the court.[19] Rules 16 and 667 are in these terms:[19] Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287.“16 Setting aside originating processThe court may—(a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or(b) declare that an originating process has not been properly served; or(c) set aside an order for service of an originating process; or(d) set aside an order extending the period for service of an originating process; or (e) set aside an originating process; or(f) set aside service of an originating process; or(g) stay a proceeding; or(h) set aside or amend an order made under rule 126(1) or 129G(1); or(i) make another order the court considers appropriate.[20]”(emphasis added)[20] The note is omitted. “667 Setting aside(1) The court may vary or set aside an order before the earlier of the following—(a) the filing of the order;(b) the end of 7 days after the making of the order.(2) The court may set aside an order at any time if—(a) the order was made in the absence of a party; or(b) the order was obtained by fraud; or(c) the order is for an injunction or the appointment of a receiver; or(d) the order does not reflect the court’s intention at the time the order was made; or(e) the party who has the benefit of the order consents; or(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.(3) This rule does not apply to a default judgment.”[21] [21] The note is omitted.