Teitzel v Bull - [2005] QDC 270

[2005] QDC 270

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1691 of 1996

PETER JOSEPH TEITZEL	Plaintiff
and
DAVID EDWARD BULL	Defendant

BRISBANE

..DATE 23/08/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 161, r 376(4),
r 469(4) - defendant's signature of request for trial date dispensed with - action characterized by long delays - defendant's 3 year old request for particulars held superseded by his own subsequent amended pleading, which changed the issues - defendant's application for order under r 376 to circumvent reply and answer pleading the statute of limitations against the counterclaim not entertained - the pleading, albeit late, had been delivered long ago - circumstances in which it would be convenient for the issue to be determined at trial.

HIS HONOUR: In the age of Dickens one might have viewed with equanimity the leisurely pace at which this plaint advances towards trial. It is becoming concerning. As the years pass the parties bring additional interlocutory applications and costs in respect of claims which are not by any means enormous in financial terms - they are about $100,000 on each side - escalate.

The defendant is able to point to delays on the plaintiff's part including risible difficulties in taking advantage of orders obtained from Judges to permit amendment of the statement of claim, in particular to incorporate a claim for compound interest. Mr Wellner has also pointed to the lateness by something like a year of the plaintiff's reply to the counter-claim.

There are complaints made in the other direction by Mr Van de Walt, representing the plaintiff, in particular to the effect that the defendant is determinably resisting the matter's coming to trial. There is some foundation for a general assertion that every time the plaintiff's camp is stirred into action to do something, a retaliatory application is made or step is taken by the defendant.

I emphasize I am not engaged in seeking to assign blame today. The plaintiff's application before the Court filed on the 5th of August 2005 seeks that the Court dispense with the defendant's signing of a request for trial date so the matter can be placed on the call-over list.
The retaliatory application of the defendant was filed a week later. It seeks pursuant to rule 376(4) of the Uniform Civil Procedure Rules that the defendant have leave to amend his defence to insert a counter-claim "as indicated in the amended defence and counter-claim filed on or about the 5th of January 2005". It also seeks an order that the plaintiff provide further and better particulars as requested by the defendant on the 9th of September 2002 (sic).

The defendant filed on the 20th of March 2003 an amended defence and counter-claim which included a counter-claim for the first time. That is essentially the counter-claim sought to be pursued now. The reply, whose efficacy Mr Wellner disputes given its lateness, raises the statute of limitations against the counter-claim.

The purpose of the first part of the defendant's application is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Teitzel v Bull

Details

AGLC: Teitzel v Bull [2005] QDC 270
Case: [2005] QDC 270
Decision Date: 23/08/2005

CaseChat Overview and Summary

In the case of Teitzel v Bull, the plaintiff, Peter Joseph Teitzel, sought to advance his action against the defendant, David Edward Bull, for a hearing. The primary dispute was regarding the defendant's counterclaim, which he sought to amend to include a claim for expenses incurred in acquiring business premises and a four-wheel drive motor vehicle. The defendant also requested the plaintiff to provide further particulars of alleged breaches of an agreement, which he claimed had never been satisfactorily documented. The District Court of Queensland heard the matter, addressing the procedural issues that arose from the long delays and multiple interlocutory applications.

The legal issues before the court were whether the defendant's signature on the request for a trial date should be dispensed with, whether the defendant's application to amend his defence and counterclaim could proceed, and whether the plaintiff should provide the requested particulars. The plaintiff argued that the matter should proceed to trial without further delay, while the defendant contended that his application to amend should be allowed to overcome the statute of limitations defence raised by the plaintiff's late reply. The court had to determine the appropriateness of expediting the trial and the relevance of the defendant's requests for particulars and amendments.

The court found that the defendant's application to amend his defence and counterclaim was not justified, given that the counterclaim was straightforward and the particulars requested were irrelevant in light of the defendant's admission that the agreement had not been performed by either party. The court reasoned that the plaintiff had the advantage of the defendant's repudiation of the agreement, and thus, the defendant's request for particulars was deemed inappropriate. Additionally, the court concluded that advancing the matter to trial was in the interests of effective case management and that the plaintiff's willingness to proceed with the existing disclosure outweighed the defendant's concerns. Consequently, the court dispensed with the defendant's signature on the request for a trial date and denied the defendant's application to amend his defence and counterclaim.

The court ordered that the matter be placed on the call-over list for an early trial date. The court also refused the defendant's application for an order confirming the efficacy of the plaintiff's late reply that raised the statute of limitations defence, noting that the trial judge would ultimately decide on the matter's admissibility. Lastly, the court directed that all costs should be costs in the cause.

Orders