DISTRICT COURT OF QUEENSLAND
CITATION:
WorkCover Queensland v Klinger Limited [2020] QDC 225
PARTIES:
WORKCOVER QUEENSLAND
(Respondent/Plaintiff)
v
KLINGER LIMITED
(ACN 008 679 838)(Applicant/Defendant)
FILE NO:
692/19
DIVISION:
Civil
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON:
11 September 2020
DELIVERED AT:
Brisbane
HEARING DATE:
3 September 2020
JUDGE:
Byrne QC DCJ
ORDER:
1. I order, nunc pro tunc, that the time within which the defendant is to serve on the plaintiff the defendant’s notice disputing the facts specified in the plaintiff’s Notice to Admit Facts dated 28 July, 2020 be extended to 4.25pm on 11 August, 2020.
2. The defendant file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 18 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
3. The plaintiff file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 25 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
4. The defendant file and serve any reply, limited to three pages, on or before 4.00pm on 30 September 2020.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – NUNC PRO TUNC ORDER – where the plaintiff failed to serve the defendant within the specified time – where the plaintiff served the defendant 24 minutes after the specified time – whether to order nunc pro tunc that the specified time be extended by 25 minutes.
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 7, r 103, r 189, r 368, r 667
Workers Compensation Rehabilitation Act 2003 (Qld)
CASES:
Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299
Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QSC 220.
Hanson Construction Materials Pty Ltd v Davey & Anor [2010] QCA 246.
Markan v Bar Association of Queensland [2014] QSC 88
McIntosh v Linke Nominees Pty Ltd [2010] 1 QDR 152.
Pollock v Thiess Pty Ltd & Ors [2014] QSC 22.
Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455.
COUNSEL: Mr. M. Grant-Taylor QC for the applicant/defendant.
Mr. B. Thomas (sol) for the respondent/plaintiff.SOLICITORS: Baker McKenzie Lawyers for the applicant/defendant.
BT Lawyers for the respondent/plaintiff.
Introduction
The amended application before me is brought pursuant to r 7(1) of the Uniform Civil Procedure Rules 1999 (“UCPR”) seeking an order nunc pro tunc that the time within which the defendant is to serve on the plaintiff the defendant’s notice disputing the facts specified in the plaintiff’s Notice to Admit Facts dated 28 July 2020 be extended to 4.25pm on 11 August 2020.
The application is brought in the context of an originating claim and statement of claim having been filed on 27 February 2019. In essence, the plaintiff’s action is to recover, by its statutory right of indemnity…
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- Case
- [2020] QDC 225
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the late service of the notice could be excused and the time extended, given the brief delay and the circumstances surrounding the late service. The court needed to balance the plaintiff's failure to adhere to the specified time against the explanation provided for the delay, and consider the broader conduct of both parties in the litigation.
The court found that the delay was due to an administrative error and acknowledged the plaintiff's intention to comply with the notice and their prompt response to obtain instructions. The court noted that while both parties had exhibited some procedural shortcomings, their conduct was within acceptable boundaries for hard-fought litigation. Considering the short delay and the overall conduct of the litigation, the court decided to grant the nunc pro tunc order, extending the time for the defendant to serve their notice by 25 minutes. Additionally, the court ordered both parties to submit written submissions and any replies on the issue of costs within specified timeframes.
In summary, the court's decision recognised the minor nature of the delay and the overall procedural context, leading to the extension of the deadline for service of the notice and setting timelines for the submission of costs-related documents.
Orders
Orders of the court
1. I order, nunc pro tunc, that the time within which the defendant is to serve on the plaintiff the defendant’s notice disputing the facts specified in the plaintiff’s Notice to Admit Facts dated 28 July, 2020 be extended to 4.25pm on 11 August, 2020.
2. The defendant file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 18 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
3. The plaintiff file and serve written submissions as to costs, limited to five pages, on or before 4.00pm on 25 September 2020 with a view to the issue of costs being determined on the papers unless otherwise ordered.
4. The defendant file and serve any reply, limited to three pages, on or before 4.00pm on 30 September 2020.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Ms Burn also deposed that her understanding was corrected at 4.12 pm on 11 August 2020. [10] The notice was served 12 minutes later.[10]supra at [37].Consideration The service of the notice disputing facts was 24 minutes late. As a result it is deemed to have been served the next day. The short passage of time by which service was late, is in my view, a highly relevant feature. However, it is only one feature of many that must be balanced in order to do justice to the parties. An explanation as to why it was late is sought to be proven through the affidavit of Ms Burn. The explanation itself is a little difficult to follow given that this too was a document which required that the date of service of the relevant document (that is, the Notice to Admit Facts) be excluded for the purposes of calculating time for the service of the reply. It must mean, on one view of it, that all such documents were late, or were potentially going to be served late in this proceeding if Ms Burn had any involvement. It is, in my view, a less than fully satisfactory explanation. Nonetheless I treat it as an unfortunate human error. Due to a late understanding of the correct date, service was in fact effected on 11 August 2020, albeit 24 minutes late. The material in that affidavit otherwise demonstrates, and is accepted by the plaintiff to demonstrate, that there was always an intention to reply to the notice. It also shows that an appropriately expeditious approach was taken to the obtaining of instructions and advice in relation to the response to the notice to admit facts. This is not a case where there was a deliberate decision made not to reply, and then an attempt to backtrack. Turning to the matters Keane JA implicitly endorsed in Chavez as a broad indication of some matters of relevance, it seems to me that the conduct of both the plaintiff and the defendant in the proceeding generally has been consistent with being involved in hard fought litigation. The matter, although requiring a number of interlocutory orders, appears to be generally proceeding in an orderly manner. That is not to say that the conduct of either party has been without fault, but it seems to me to be within appropriate boundaries. The defendant also points to specific conduct of the plaintiff in the proceedings, and in particular has taken me to an affidavit of Benjamin Burke filed 2 September 2020. Attached to that affidavit is a schedule of some 11 instances where it is said that the plaintiff has been late in providing responding material, sometimes by a matter of minutes. The relevance of that I think is to show that there has been failure by the plaintiff to adhere to timelines by a small margin, and that a matter of minutes often will not occasion any particular prejudice. The circumstances in which the self-executing order was made were those which arise by force of the rules. It seems to me that there is little, if anything, of relevance, in the circumstances of this matter, to that circumstance although I do accept that the Notice to Admit Facts was sent in a bona fide attempt to streamline the issues at trial.