Crown Posture Bedding (Qld) Pty Ltd v Hiscoe [2009] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: Crown Posture Bedding (Qld) Pty Ltd v Hiscoe [2009] QDC 24 PARTIES: CROWN POSTURE BEDDING (QLD) PTY LTD (ABN 121528387) (plaintiff) V HISCOE, Peter (defendant) FILE NO/S: 403/08 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: Ex tempore DELIVERED AT: Brisbane HEARING DATE: 17.02.2009 JUDGE: Kingham DCJ ORDER: 1. Order in terms of draft order, as amended, in order 3. CATCHWORDS: SUMMARY JUDGMENT – Whether prima facie case can be established – Where no reasonable prospects of defending the claim Uniform Civil Procedure Rules 1999 (Qld), r 292 COUNSEL: B Kidston for the plaintiff Defendant self-represented SOLICITORS: James Varitimos Solicitor for the plaintiff Defendant self-represented [1] HER HONOUR: This is an application for summary Judgment by the plaintiff under rule 292 of the Uniform Civil Procedure Rules. [2] The first matter that I must address is whether a prima facie case has been made out. I'm satisfied, on the affidavits of Mr Varitimos and Ms Bubunarus, that the sale and delivery of goods to the defendant has been established and the demand made. I accept that the plaintiff has made out a prima facie case. -- 1 of 2 -- 2 [3] The evidentiary onus then shifts to the defendant to persuade the Court that the plaintiff should not succeed in its application. [4] The original application for summary Judgment was brought on before Judge Rafter SC on the 15th of August 2008. It was then adjourned on a number of occasions and since then the defendant's solicitors have withdrawn and the defendant represents himself. [5] Mr Hiscoe appears personally today and has outlined his personal circumstances and the difficulties that he has faced in funding a defence to the claim. [6] That is a matter that I note and I understand the pressure Mr Hiscoe has been under. However, that is not something that can be taken into account by the Court on this application. [7] Yesterday, in response to a request my associate made for written submissions from the parties, the defendant, Mr Hiscoe, e-mailed my associate an e-mail he apparently sent to his former solicitor last year. [8] The representative for the plaintiff, Mr Kidston, objects to me paying any regard to that material. I will grant the defendant leave to place the material before me in that form. I'll have it marked Exhibit 1 for these proceedings. [9] I do note, though, that it does not produce any evidence that satisfies the onus that rests upon Mr Hiscoe. What it is, is a list of claims that Mr Hiscoe wished his former lawyer to make in response to the plaintiff's action but it does not describe or establish the basis for those claims. [10] They may well be valid defences to and counterclaims against the plaintiff's claim, but I have inadequate material before me to assess that. The defendant has had ample opportunity to properly plead his case and to place material before the Court and has not done so. [11] I am persuaded the plaintiff has established a prima facie case and that the defendant has no real prospect of successfully defending the claim. [12] My assessment of his prospects is based, in part, on Mr Hiscoe's failure thus far to plead his claims or produce any evidence in support of either the basis for them or his intention to pursue them. Indeed, today Mr Hiscoe has given the Court a clear indication that he does not intend to and is not in a position to pursue a defence or counterclaim in this case. [13] In the circumstances, then, I have concluded that there is no need for a trial of the claim and that the plaintiff should have the orders that it seeks. I will make orders in terms of the draft that's been handed up to me, as amended, in order 3. [14] Mr Hiscoe, in the course of your submissions, you raised matters that you may wish to pursue in a different forum once Judgment has been entered and there is always the opportunity, no doubt, for you to discuss the matter of payment of the Judgment further with the plaintiff and its representatives and I would urge you to do that. -- 2 of 2 --