Richardson v Marcford Pty Ltd

[2000] QSC 62

SUPREME COURT OF QUEENSLAND

CITATION:	Re: Jean Mary Richardson v Marcford Pty Ltd & Ors [2000] QSC 062
PARTIES:	JEAN MARY RICHARDSON (Plaintiff) v MARCFORD PTY LTD (First Defendant) and PHELAN'S BAKERY (a firm) (Second Defendant) and WILLIAM JOHN PHELAN (Third Defendant) and FAY REBECCA PHELAN (Fourth Defendant)
FILE NO:	11183/98 Brisbane Registry
DIVISION:	Trial Division
DELIVERED ON:	21 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2000
JUDGE:	Mackenzie J
ORDER:	1. The plaintiff to pay the defendants' costs of and incidental to the application to be assessed.
CATCHWORDS:	PRACTICE - STATEMENT OF CLAIM – Failure to file a statement of claim – practice where writ issued but not served before UCPR came into force.
Supreme Court of Queensland Act 1991, 5135 Uniform Civil Procedure Rules x r22, r134, r139, r444, r445
SOLICITORS:	S.A McGhie for the plaintiff R. Gardiner for the defendants Richardson McGhie for the plaintiff Clayton Utz for the defendants

1. MACKENZIE J: This matter began as an application for an order that the respondent plaintiff file and serve her statement of claim within seven days of the date of hearing of the application and that her claim automatically stand dismissed for want of prosecution if she failed to do so. By the time the hearing date arrived the statement of claim had been filed and the only argument was as to costs. However, since it raised issues concerning proceedings spanning the commencement date of the UCPR, I preferred to give written reasons rather than deal with the matter instanter.

2. The application is made in an action commenced on 2 December 1998 by the plaintiff against the defendants for negligence and breach of statutory duty. The plaintiff alleges two separate injuries occurring about a month apart almost three years before the date upon which the writ was issued. The writ was not served until over 11 months later by which time the UCPR had come into force.

3. No statement of claim was served with the writ. Had the proceedings commenced after 30 June 1999 the statement of claim should have been served with the initiating process (r 22 UCPR). After the writ was served the defendants' solicitors wrote to the plaintiff's solicitors requesting the filing and serving of the statement of claim within 14 days. The letter referred to the requirement under UCPR for a statement of claim to accompany the claim and asserted that notice of intention to defend could not be filed and served until the statement of claim had been received. The solicitor for the plaintiff took issue that UCPR applied and asserted that pursuant to s135 of the Supreme Court of Queensland Act 1991 the defendants were required to file the notice of intention to defend first. Section 135 provides:

   "On the commencement of the Uniform Civil Procedure Rules, those rules apply to the next step in a proceeding pending ... that can reasonably be taken in compliance with those rules."

4. The solicitors for the defendants replied to the effect that since a notice of intention to defend was required to have the defence attached they could not file it. The solicitor for the plaintiff replied that since r134 stated that ch 5 of UCPR applied "only to a proceeding stated by claim" rule 139 had no application. He suggested that the transitional provisions in UCPR were "far from satisfactory" and said that there was no reasonable obstacle to the defendants filing notice of intention to defend. He also purported to waive the requirement that the defence be attached to the notice of intention to defend.

5. To avoid further disputation the solicitors for the defendants enquired in the Registry on 22 December 1999 whether a notice of intention to defend without a defence attached could be filed. According to the Articled Clerk who made the enquiries he was advised that it would be accepted because the proceedings had been commenced by writ issued under the previous Supreme Court Rules and no statement of claim had yet been provided. Accordingly, notice of intention to defend, without the defence attached was filed on 4 January 2000.

6. On 5 January 2000 the notice of intention to defend was served by post with a covering letter that stated that the defendants awaited the plaintiff's statement of claim. There was no reply to this letter. The plaintiff's solicitor deposes that he was on holidays during January and returned on 27 January 2000. Preferred counsel was also on holidays and did not return until that day. Because counsel was involved in trials until the end of the first week in February, the solicitor believed that it was pointless to brief counsel to settle the statement of claim immediately. He says that had he received advice that the defendants wished to impose particular time constraints he would have made arrangements for another counsel to be briefed.

7. In any event on 9 February 2000 a letter under Pt 8 ch 11 of UCPR was sent to the plaintiff's solicitors requiring the statement of claim to be filed by 14 February 2000. The letter foreshadowed that an application for a guillotine order for delivery of the statement of claim would be sought. The plaintiff's solicitor says he received this letter late on 11 February 2000. He did not respond to it in terms of r 445, or at all except to the extent which will become apparent.

8. In consequence of the 14 February passing without any reply to the r 444 letter or the statement of claim being filed the present application was filed close to closing time in the Registry on 16 February 2000. At 4.47 pm on that day a copy of the statement of claim was faxed to the defendants' solicitors. It was eventually filed on 22 February 2000. It is common ground that service of the application was not effected before the copy of the statement of claim was faxed. It is also clear enough that because of the lack of communication the filing of the application and the faxing of the statement of claim happened independently within a short time of one another.

9. The costs thrown away by bringing the application, as it has turned out unnecessarily, is a direct consequence of the plaintiff's solicitor not responding in a timely way to the correspondence. It would have been very easy to have at least contacted the defendants' solicitors to advise them of the difficulty with counsel, or, after the letter of 9 February 2000 was received, that delivery of the statement of claim was imminent although not in strict compliance with the requirement in the letter. In the circumstances it seems to me to be inevitable that the plaintiff must pay the costs wasted.

10. It is unnecessary to explore the point fully and the rules may contain a lacuna in this regard, but if any writs taken out before the UCPR came into force are still unserved or have been served without any other step being taken, it is likely to be the most convenient practice, at least in a case where it is anticipated that the matter will be defended, to deliver the statement of claim before any further step is taken since filing of the notice of intention to defend without a defence attached does not comply fully with UCPR.

11. I order the plaintiff to pay the defendants' costs of and incidental to the application to be assessed.