Webster v Westpac Banking Corporation

DISTRICT COURT OF QUEENSLAND

CITATION:	Webster v Westpac Banking Corporation [2006] QDC 509
PARTIES:	WILLIAM WEBSTER
Plaintiff and
WESTPAC BANKING CORPORATION
Sixth Defendant
FILE NO:	D5259 of 2001
PROCEEDING:	Application to set aside renewal of claim
DELIVERED ON:	06 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2006
JUDGE:	Judge Brabazon QC
ORDER:	Set aside order renewing claim
CATCHWORDS:	Adjournment
COUNSEL:	Mr L Kelly SC and Mr D S Piggott for the Sixth Defendant Miss D Skennar for the Plaintiff
SOLICITORS:	Mallesons Stephens Jaques for the defendant Hall Payne Lawyers for the plaintiff.
The Issue

1. This claim was filed on 30 October 2001. It was not served within the 12 months allowed by the Rules. In October 2005, a Deputy Registrar of this Court renewed the claim up to 29 October 2006. That application was without notice to Westpac.

2. Should that order be set aside? Should this Court now make a different order?

The Renewal

1. In August 2005 application was made to the Registrar, to renew the claim of October 2001. No written application appears on the file. A lengthy affidavit by Mr Webster’s solicitor was filed.

2. The application was at first declined. In substance, a notation on the file says this:

   “…Rule 24(2) of UCPR permits Registrar “to renew for further periods of not more than one year starting on the day after the claim would otherwise end.”

   I consider that r 24(2) does not contemplate that the Registrar would make a series of renewals where more than two years has passed since filing of claim. See Gillies v Dibbetts 1999 QSC 161 at 37.

   Please consider the above and supply written submissions within case law that authorises a series of renewals.”

3. The solicitors for Mr Webster responded by filing another affidavit – largely formal in its effect – and some written submissions.

4. The submissions correctly observed, that r 24(2) of the UCPR provides that a claim, more than 12 months old, may be renewed for “another good reason”, there being no reason why Westpac had not been served.

5. Reliance was placed on the facts set out in the solicitor’s affidavit. His affidavit showed that he had spoken to Westpac’s solicitor about this claim. He said that he was aware of many such claims against Westpac. That was during 2003.

6. Then, in July 2005, Mr Webster’s solicitor sent a copy of the claim and amended statement of claim direct to Westpac’s solicitors. Those pleadings, and some other documents, were sent “by way of service”. Westpac’s solicitors responded in a letter of 27 July 2005. Those solicitors observed that the proceedings did not appear to be in force as against Westpac. The letter went on – “please clarify the basis on which you are representing the proceedings to be extant as against our client”.

7. They received no reply to that letter.

8. If only because of the informal service of the papers, and Westpac’s solicitors query about the validity of that service, it was quite wrong for the Registrar to…