Cameron v Booij & Anor [2006] QDC 135

1 [2006] QDC 135 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 3629 of 2005 MARGARET SOK LENG CAMERON Plaintiff and HANS BOOIJ First Defendant and DUPPYHIGH LTD ACN 061 273 381 Second Defendant BRISBANE ..DATE 28/04/2006 ORDER CATCHWORDS: Uniform Civil Procedure Rules, r 112(1)(f), r 223, r 443, r 444, r 445 - costs argument - whether plaintiff's application for order for disclosure was filed prematurely - it was filed before the date when the defendants had said their list would be provided, but no list was forthcoming until the eve of the return date - rule 444 held inapplicable, although the parties purported to follow its procedures - defendants not justified in sending r 445 letter (which miscarried) to the email address of the plaintiff's solicitors as it had not been notified as an address for service WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 5 -- 28042006 T3/JNR3 M/T CMS47/2006 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This application filed on the 3rd of April 2006 for disclosure under rule 223 resolved into what might have seemed an unexciting contest about costs because the plaintiff now has the list of documents which she sought. That arrived yesterday, the 27th of April, notwithstanding the defendants' solicitors having written, in a letter of the 31st of March 2006, that it would be forthcoming in 14 days. Mr Harrigan, representing the defendant, contends that the application was filed prematurely. It was certainly filed before the foreshadowed date of provision of the list of documents, but one interpretation of subsequent events was that the filing was justified and may have been the catalyst needed to get the list actually produced. There has been another aspect raised by Mr Harrigan in relation to Rule 444, the importance of which was emphasised by the Court of Appeal in Meredith v Palmcam Pty Ltd [2000] QCA 113 as Judge McGill noted in Millhouse IAG Pty Ltd v Environautics Pty Ltd [2000] QDC 196 at paragraph [4]. Rule 444 does not, in express terms, deal with applications like the present, as the Court of Appeal acknowledge in BTU Group v Noble Promotions Pty Ltd [2002] QCA 505. Reference to Rule 443 is necessary. There one finds particular reference, for example, to applications for further and better particulars under Rule 161. The parties embarked on Rule 444 procedures, which is to be commended for the reasons noted by Judge McGill. On the assumption that they did apply, Mr Harrigan submits that he -- 2 of 5 -- 28042006 T3/JNR3 M/T CMS47/2006 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 sent a timely Rule 445 letter by email on the last day of the period which had been allowed, the minimum one possible of three days. Although that email may have been sent in time it appears that difficulties of one kind or another meant that it was some considerable number of days before the plaintiff's solicitor was able to open and read the communication. That doesn't necessarily import any want of proper diligence on their part. I think it is notorious that from time to time providers encounter problems in providing their users with an efficient email service and that delays of days or weeks have occurred in fairly recent times. And it may be, although I cannot attest to this, that there are instances of communications not being delivered at all. It is not suggested Mr Harrigan's went astray to that extent. I think Mr Nevison is correct in his submission that there was no warrant if, as here, one is driven to a fine analysis of things, for use of email communication. If one reads Rule 112(1)(f)(iii) literally, the mere circumstance that a solicitor has an email address authorises the use of it for "ordinary service". The plaintiff's solicitors did indicate their email address which Mr Harrigan took advantage of on correspondence sent by them. However, it was not indicated as a potential address for service on the claim, although provision of an email address in that regard is provided for in form 2 where there's a reference to "DX (if any)and email address (if any)". -- 3 of 5 -- 28042006 T3/JNR3 M/T CMS47/2006 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 In my opinion the intent of that form is to allow a solicitor who has those facilities to invite use of them by other parties. It should be up to that solicitor whether or not to make the invitation, and even if such facilities do exist, the solicitor may decline to invite use of them. Making such an invitation imports a practical obligation to be diligent in checking to see whether documents have come in, which is something particular firms in particular circumstances may not be willing or able to do. There is the special difficulty, of course, of the occasional unreliability of email communications. Notwithstanding the unqualified language of Rule 112 and the convenience that may often attend the use of modes of communicating listed there, I think it ought to be applied in practice on the basis that the only service addresses that can be safely used are ones notified in a claim, notice of intention to defend and the like. The consequence of the above views is that I think the plaintiff is entitled to the order for costs which she seeks. Looking at the situation more broadly, it cannot be gainsaid that it appears that if the plaintiff did take any risk in filing her application on the day she did, in retrospect that can be assessed as justifiable. So I order the defendants to pay the plaintiff's costs of the application to be assessed. ... -- 4 of 5 -- 28042006 T3/JNR3 M/T CMS47/2006 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I dismiss the plaintiff's application but order the defendant pay the plaintiff's costs of and incidental to it to be assessed. ----- -- 5 of 5 --