Robinson v BP Griffin Builders Pty Ltd
[2014] QDC 213
•12 September 2014 Ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Robinson v BP Griffin Builders Pty Ltd [2014] QDC 213 |
PARTIES: | CARL JAMES ROBINSON (plaintiff) v BP GRIFFIN BUILDERS PTY LTD (ACN 070 030 429) (defendant) |
FILE NO/S: | 32/12 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 12 September 2014 Ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 September 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. The trial dates of 3, 4, 5, 6 and 7 November 2014 are vacated. 2. The proceedings are stayed until the plaintiff files and serves and affidavit or affidavits as to his legal capacity. 3. The costs of today are to be costs on the cause. 4. The affidavit or affidavits to be filed and served referred to in paragraph 2 of this order are to be filed and served within 21 days of today. |
CATCHWORDS: | PRACTICE - STATEMENT OF CLAIM - STRIKING OUT - where the plaintiff sought to add a claim for suffering rheumatoid arthritis to the plaintiff’s action against the defendant - where the plaintiff did not amend his action to include rheumatoid arthritis - where his Honour Judge Andrews SC ordered the plaintiff to file and serve on the defendant an affidavit as to the plaintiff’s legal capacity - where the plaintiff failed to comply with the order of his Honour Judge Andrews SC - where the defendant applied to the Court to have the trial dates vacated - where the defendant also applied to strike out the plaintiff’s claim and statement of claim - whether the plaintiff’s claim should be struck out |
COUNSEL: | The plaintiff represented himself Mr D Cormack for the defendant |
SOLICITORS: | BT Lawyers for the defendant |
HIS HONOUR: This matter came before his Honour Judge Andrews on the 14th of April 2014. On that occasion his Honour ordered that the plaintiff file and serve an affidavit as to his legal capacity within five business days. His Honour also ordered that the proceedings be stayed until the plaintiff filed and served an affidavit as to his legal capacity. There is no dispute that the plaintiff has not filed and served an affidavit as to his legal capacity within five business days of 14 April 2014 or at all. It seems to me that this matter has had an unfortunate path to today in that when it was ready to come on for trial before his Honour Judge Smith, in Rockhampton, earlier in the year, the plaintiff was seeking to add the suffering of rheumatoid arthritis as having been caused by the incident which led to the common law proceedings that were then on foot. He had been diagnosed with rheumatoid arthritis in December 2012. Unfortunately no amendment was made to his proceedings. In addition he has not, as it would appear he must, make application to the Worker’s Compensation Authorities to assess his claim for rheumatoid arthritis. The unfortunate consequence is that those processes will take some time to be carried through.
In addition I take it that his Honour Judge Andrews had some basis to make the orders he made on 14 April 2014. As those orders have not been complied with the matter again is at a position where it cannot proceed. That is because this matter is due to go to trial on 3, 4, 5, 6 and 7 November 2014. Now, the application before me today seeks to vacate those dates for trial. Further an order is sought that if an affidavit from the plaintiff is not provided by 5pm on 19 September 2014 then upon the solicitor for the defendant filing an affidavit deposing to the failure of the plaintiff to do so the plaintiff’s claim and statement of claim be struck out by the Registrar.
I have received today, by way of email, a message which I take to have been from the plaintiff enclosing a letter from a Craig Prince, dated 11 September 2014. Unfortunately, Mr Prince’s letter is more concerned about whether his qualifications will be received in Queensland. It seems to me that while Mr Robinson, the plaintiff, has had difficulty obtaining assistance with complying with Judge Andrews’ order I would have thought that Mr Prince would have gone ahead and set out his qualifications and expressed his opinions and that could have been received by the court and a decision made whether it was good enough or not.
PLAINTIFF: I tried to tell him, your Honour, but he doesn’t want to waste my time or money. Okay. I did try to tell him that.
HIS HONOUR: Yes.
PLAINTIFF: I just said go ahead with it but he doesn’t want to waste my time or money. Okay.
HIS HONOUR: Well ‑ ‑ ‑
PLAINTIFF: So [indistinct].
HIS HONOUR: It seems to me that Mr Robinson wants to proceed with his claim, he acknowledges that his rheumatoid arthritis has not been addressed by way, either, of amendment to the proceedings or by filing relevant application with the Worker’s Compensation Authorities. It seems to me that Judge Andrews had some basis to make the order he made but it has not been complied with; that this will all cause delay. In the end I have come to the view that clearly the trial dates of 3, 4, 5, 6 and 7 November 2014 should be vacated. The only other order that I’m prepared to make is that the proceedings are stayed until the plaintiff files and serves an affidavit or affidavits as to his legal capacity. The third order I’m prepared to make is that the costs of today are to be costs of the cause.
I am not prepared to make an order that has the effect that the plaintiff’s claim and statement of claim be struck out by the Registrar as sought in paragraph 2 of the defendant’s application. I am not satisfied that Mr Robinson is not genuine. As matters stand at the moment he has had a claim on foot, he has tried to progress that claim, delays have occurred; clearly being self represented I acknowledge that increasing delays can occur and that is what has happened. In the end I think the matter should be left on the basis that the proceedings be stayed. I will give Mr Robinson a further period of 21 days. The – I will order that the affidavit to be filed and served, referred to in paragraph 2 of these orders, be filed and served within 21 days of today.
PLAINTIFF: 3rd of October.
HIS HONOUR: Yes. I haven’t looking if that’s a Saturday or a Sunday but that’s – is it a Monday, Tuesday, Wednesday, Thursday or Friday.
PLAINTIFF: It should be a Friday.
HIS HONOUR: All right.
PLAINTIFF: 21 days from today is Friday.
HIS HONOUR: All right.
PLAINTIFF: 21 days from here is the 3rd.
HIS HONOUR: Yes. Well, thank you. They’re the orders. That is the trial dates of 3, 4, 5, 6 and 7 November 2014 are vacated; the proceedings are stayed until the plaintiff files and serves and affidavit or affidavits as to his legal capacity; the costs of today are to be costs on the cause; the affidavit or affidavits to be filed and served, referred to in paragraph 2 of this order, are to be filed and served within 21 days of today. Yes. Thank you, Mr Robinson.
PLAINTIFF: Thank you.
HIS HONOUR: That’s the end of the proceedings today.
PLAINTIFF: Thank you, your Honour.
HIS HONOUR: Yes. Thank you, Mr Robinson. Thank you, Mr Cormack.
PLAINTIFF: Excuse me, your Honour.
HIS HONOUR: Yes, Mr Robinson?
PLAINTIFF: Can I get a court transcript, please?
HIS HONOUR: All I can do is order the – yes, I’m sorry, I’m not allowed to provide you with a copy; you have to obtain that yourself.
PLAINTIFF: Righto. Okay. All right.
HIS HONOUR: Thank you, Mr Robinson.
PLAINTIFF: Okay. Thank you.
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