August v G J Glass & Aluminium (Qld) Pty Ltd [2001] QDC 84

DISTRICT COURT OF QUEENSLAND CITATION: August v. GJ Glass & Aluminium (Qld) Pty Ltd [2001] QDC 084 PARTIES: DENNIS GEORGE AUGUST (plaintiff) v. GJ GLASS & ALUMINIUM (QLD) PTY LTD (Defendant) FILE NO/S: D133 of 2000 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court Maryborough DELIVERED ON: 17 May 2001 DELIVERED AT: Brisbane HEARING DATE: 10 May 2001 JUDGE: McGill DCJ ORDER: Order that the order made on 9 March 2001 be set aside, the application filed 14 February 2001 be dismissed, and there be no order as to the costs of the application filed 14 February 2001 or of the application filed 21 March 2001. CATCHWORDS: PRACTICE – Trial – request for trial date – whether party ready for trial – appropriate rule when one party will not sign request – Uniform Civil Procedure Rules r.469. PRACTICE – Application – order made in absence of respondent – whether proper notice of date of hearing – whether order appropriate – Uniform Civil Procedure Rules r.667(2)(a). JUDGMENTS AND ORDERS – Order made in absence of party – whether order should be set aside – Uniform Civil Procedure Rules r.667(2)(a). Parr v. Bavarian Steak House Pty Ltd [2000] QCA 429 – cited. Meredith v. Palmcam Pty Ltd [2000] QCA 113 – cited. Sproule v Long [2000] QSC 232 – cited. George Weston Foods Ltd v FH Transport Pty Ltd [1999] QDC 212 – followed. COUNSEL: M. T. O’Sullivan for the defendant. -- 1 of 9 -- 2 SOLICITORS: Carswell & Co for the plaintiff. Bell Dixon Butler for the defendant. [1] This is an application to set aside an order which was made on 9 March 2001 by another judge. The application was made under r.667(2)(a) of the Uniform Civil Procedure Rules. It is not disputed that the order of 9 March 2001 was an order made in the absence of the defendant for the purposes of that rule: Sproule v Long [2000] QSC 232. [2] The order was made during a sittings of the District Court in Maryborough. The plaintiff had filed an application on 14 February 2001 seeking an order under r.467(2) of the Uniform Civil Procedure Rules that the matter be set down for hearing on the trial list and for an order that the defendant pay the plaintiff’s costs of the application. In accordance with the usual practice during a circuit of the judge who made the order, all chambers matters including this one were mentioned on 20 February 2001 at 2 p.m., when both parties were represented by solicitors and the solicitor for the defendant/respondent stated that the application was to be contested.1 The judge adjourned the matter to a date to be allocated in the final week of the sittings which were held in Hervey Bay during the week commencing 5 March 2001. According to the defendant’s solicitor, his Honour also mentioned that either party could have the matter relisted during that week by contacting his associate. [3] The solicitor for the plaintiff was subsequently advised by his Honour’s associate that the matter would be heard on 9 March 2001. Apparently all contested chamber applications in that sittings were heard on that day. However, the defendant’s solicitor has sworn that he was not aware that the matter was going to be heard on that or any other particular day, and, having heard nothing further about it, he assumed that the plaintiff had decided not to proceed with the application, in view of the very detailed correspondence which had been sent to the plaintiff’s solicitors explaining why the defendant’s solicitor considered that the matter was not yet ready for trial. With the benefit of hindsight, it would have been a wise precaution to have telephoned the court to see whether the matter was coming on during that week, and if so when, but that was not done. [4] On 9 March the solicitor for the plaintiff noticed that the solicitor for the defendant was not present, although he saw another person from the same firm at the court who was there for some other purpose and mentioned the matter to that person with a suggestion that the defendant’s solicitor be contacted.2 He also asked that the matter be stood down to the end of the list, which was done, but by the time his Honour reached the end of his list, the solicitor for the defendant had not yet appeared. Apparently his Honour had the defendant’s name called three times and then made the orders sought in the application. It is not clear that his Honour was informed on that occasion that the application was expected to be contested. That 1 Affidavit of Hinton filed 24 March 2001. 2 He informed me of this in court during the hearing on 10 May 2001. -- 2 of 9 -- 3 was to be the last day of the sittings, and once his Honour had dealt with that matter, he would have concluded the work for the sittings and been in a position to return to Brisbane. In any case, his Honour proceeded in the absence of the representative of the defendant, and made the orders sought in the application. [5] The defendant’s solicitor swore he heard nothing further about the matter until 21 March 2001 when a letter arrived from the plaintiff’s solicitor enclosing a copy of the order of 9 March and seeking payment of the costs ordered to be paid.3 Subsequently the application before me was filed on 24 March 2001 and came on during the next sittings of the District Court in Maryborough. On that occasion both parties were represented, the defendant by counsel. History of the litigation [6] The action was commenced by a claim filed in the Maryborough Registry on 24 October 2000, claiming damages in respect of personal injuries alleged to have been suffered by the plaintiff on 4 February 1999 in the course of his employment with the defendant. Because of the nature and timing of the claim, it was necessary for the plaintiff to comply with the requirements of the WorkCover Queensland Act 1996 before commencing the proceedings, which involved among other things the holding of a compulsory settlement conference on 20 July 2000. There is apparently no dispute that the requirements of that legislation were complied with, and the action was properly commenced when it was. [7] Thereafter matters appear to have proceeded with reasonable expedition. A Notice of Intention to Defend and Defence was filed on 29 November 2000. The defence puts in issue both liability and quantum. On the same day the plaintiff’s solicitors delivered a list of documents, and a Statement of Loss and Damage on behalf of the plaintiff was delivered on 12 December 2000. The defendant delivered a list of documents on 22 December 2000, but had on 20 December 2000 sought from the plaintiff’s solicitors copies of certain documents disclosed in the plaintiff’s list of documents, and raised the question of whether the plaintiff had made complete disclosure in view of the implications of the decision of the Court of Appeal in Parr v. Bavarian Steak House Pty Ltd [2000] QCA 429.4 [8] On 10 January 2001, the solicitors for the plaintiff tendered to the solicitors for the defendant an executed request for trial date with a request that this be signed and returned by the solicitors for the defendant.5 On 18 January the defendant’s solicitors replied by letter (received the following day) saying that it was clear that the matter was not yet ready for trial and declining to sign the request. That letter noted that during a telephone conversation on 10 January 2001 there was an agreement for a mediation which was arranged for 15 February 2001. The letter also chased up the question of disclosure, made some complaint about the adequacy 3 Affidavit of Hinton filed 24 March 2001, para 5. 4 See Exhibit JKM3 to the affidavit of McDuff filed 14 February 2001. 5 Affidavit of McDuff filed 14 February 2001. -- 3 of 9 -- 4 of the Statement of Loss and Damage, enclosed by way of service a copy of the defendant’s list of documents together with a copy of the defendant’s statement of expert and economic evidence, and foreshadowed a possible request that the plaintiff be examined. [9] That letter crossed another letter from the plaintiff’s solicitors dated 19 January enclosing the documents requested in the letter of 20 December 2001, and requesting the return of the executed request of trial date. However, that document was not returned, and on 14 February the application was filed in the court. Prior to that time the defendant’s solicitors had made arrangements for the plaintiff to be examined on their behalf by a specialist medical practitioner on 10 April 2001, and the plaintiff had provided a supplementary Statement of Loss and Damage on 1 February 2001. Rules Relating to Listing for Trial [10] The Uniform Civil Procedure Rules contemplate that ordinarily a trial will be set down for hearing following the filing of a request for trial date: r.467. Although there is a power in r.467(2) to order otherwise, in my opinion if the rules are considered as a whole it is clear that that is not the power which it is appropriate to use in circumstances where one party has signed a request for trial date and wants the request to be filed but another party has failed or refused to cooperate by also signing the request. Under r.469(4) the party who has signed and tendered a request for trial date may, after the appropriate period of time has elapsed, apply to the court for an order that the signature of the party who has not signed be dispensed with. If such an order is made, the applicant can then file a request for a trial date without such signature, and the matter is then placed on the list of matters which are then given a trial date, either at a callover or by a registrar. [11] The advantage of the order being made under this rule in such circumstances is that there will still be a request for a trial date filed by the party which is willing to sign one. Apart from the practical advantage of that document in the efficient administration of the court, and the benefit in having on the court file the information required to be included in the approved form of the request for trial date, there is also the consideration that a fee is payable on filing such a document. Accordingly, in my opinion, there needs to be good reason shown in a particular case why an order should be made under r.467(2) rather than under r.469(4). Nothing in the material that I have seen provides any justification for that course in the present case. His Honour did not give reasons for his decision, so I do not know whether he considered this point. However, I would not make an order under r.467(2) in the present circumstances, even if it were otherwise appropriate for the matter to be listed for trial. Was the Action Ready for Trial? -- 4 of 9 -- 5 [12] Apart from that however, in my opinion it was not appropriate for the plaintiff’s solicitor to sign the request for trial date when he did apparently on 10 January 2001. Apart from anything else, at that stage there was a request outstanding for the provision of copies of documents disclosed by the plaintiff. In circumstances where the plaintiff’s solicitors had been asked to provide copies and they had not complied with that request, the matter was not as far as the plaintiff was concerned in all respects ready for trial. A step to obtain inspection of documents was not complete: r.469(5)(d). It does not follow that as long as the other party is seeking any further disclosure the matter will not be ready for trial; it may be that one party takes the view that there has been proper disclosure, and on that view that party will be ready for trial (so far as disclosure is concerned) even if the other party asserts that proper disclosure has not been made. [13] The obligation to make disclosure is a continuing one (r.211(2)), but that does not mean that a party will be continuously subject to an outstanding obligation to do something by way of disclosure. Once the disclosable documents have been listed and the list served, a request for copies has been made and has been complied with, then unless and until further disclosable documents come into the possession of the party, the obligation to make disclosure would have been satisfied. [14] It follows that in my opinion at the time when the plaintiff’s solicitors signed the request for trial they ought not to have done so. That is not a promising start to an application under r.469(4), although it is not necessarily fatal, because a request for trial which has been signed contrary to the rules is not a nullity, but an irregularity: r.371(1). This may have consequences in terms of costs, but otherwise the real issue on the hearing of such an application is as to the state of readiness for trial at that time. By the time this application came to be heard, the request for copies of disclosed documents had been satisfied. Although it appears that the issue about further disclosure foreshadowed in the letter of 18 January remained unresolved, it was for the defendant to make a further application if it wanted to take that issue further. [15] It was argued on behalf of the defendant that the matter was not ready for trial on the date when the order was made because at that time the plaintiff had agreed to an independent medical examination which had not yet been concluded. That was not a reason why the matter was not ready for trial so far as the plaintiff was concerned, but in my opinion in such circumstances it could not be said that the matter was ready for trial so far as the defendant was concerned. In those circumstances, in my opinion, it was reasonable for the defendant at that time not to have signed and returned the request for trial date, and accordingly as things stood on 9 March 2001, the application ought to have been dismissed. \ Other Grounds Relied on [16] It was also submitted that the matter was not ready for trial because there was a prospect of a mediation. The possibility of a mediation, or even the holding of a mediation which is the subject of an agreement, is not a matter referred to in -- 5 of 9 -- 6 r.469(5) as one of the features which constitute a matter ready for trial or otherwise. If there is a referring order by the court for mediation (or case appraisal) the action is stayed until that process is concluded (r.321), but otherwise there is no particular reason why a pending mediation is necessarily a reason not to place the matter on the list for trial. It would obviously be undesirable for a trial date to be given before a date agreed on for mediation, or indeed until a reasonable time thereafter. I have in another matter expressed the view that a desire by the party served with the signed request for trial to have a mediation, or indeed to consider the possibility of having a mediation, does not provide a good reason for not signing the request for trial date and returning it: George Weston Foods Ltd v FH Transport Pty Ltd [1999] QDC 212. I would therefore reject this submission. [17] Under the former rules of the Supreme Court, an action claiming damages for personal injury was not regarded as ready for trial unless a conference had been held between all the parties or their solicitors or counsel for the purpose of discussing and if possible reaching agreement on all matters in dispute in the action: O.39 r.30A(4)(e). Under the Uniform Civil Procedure Rules however, r.553 permits any party to give a notice calling such a conference, but in the absence of such a notice, the holding of such a conference is not a necessary interlocutory step to be completed before a matter can be said to be ready for trial. Arranging a mediation, or calling for a mediation, is not, in my opinion, giving a notice for a conference under r.553. The evidence does not indicate that any such notice was given, so the failure to hold a conference under that rule, which was also relied on on behalf of the defendant, was not a reason for concluding that the matter was not ready for trial. If such a notice had been given, and the conference not yet been held, the position would have been different: r.469(5)(g). [18] It was submitted on behalf of the defendant that in addition the plaintiff’s application was deficient because of the failure to comply with r.444 prior to filing the application. This is a serious matter where the application is one which falls within r.443: Meredith v. Palmcam Pty Ltd [2000] QCA 113. However, in my opinion, the application which was then before the court was not one which fell within r.443; it was not an application for further and better particulars, it was not an application made under either Part 1 or Part 2 of Chapter 10, nor was it an application relating to a failure to comply with an order or direction of the court. In my opinion, an application under r.469(4), or for that matter an application under r.467(2) is not an application to which r.444 applies. [19] Nevertheless, for the reasons that I have given in my opinion it was not appropriate for an order to have been made under r.469(4). In those circumstances, it was in my view even less appropriate for an order to have been made under r.467(2) placing the matter on the trial list for hearing without the filing of a request for trial date. The relevant situation has not changed, as the examination has been held but the report of the doctor has not yet been received, so the order is still not appropriate. The plaintiff’s application therefore ought to be dismissed. -- 6 of 9 -- 7 Costs [20] The defendant also submitted that it was not appropriate to make an order for costs on the earlier occasion, because the application was governed by s.325(4) of the WorkCover Queensland Act 1996 which prohibits an order for costs being made on an interlocutory application unless the application has been brought because of “unreasonable delay” by one of the parties. If the plaintiff had been justified in making the application to dispense with the requirement that the defendant sign the request for trial, it may well be that there had been unnecessary delay on the part of the defendant in signing and returning the request for trial date, and in those circumstances an order for costs against the defendant may well have been justified. However, if the application fails, it does not follow that an order for costs can be made against the plaintiff; if the defendant was justified in failing to sign and return the request for trial date, there was no unnecessary delay on the part of the defendant, or for that matter the plaintiff, so the application is not one which falls within s.325(4) of the Act. In these circumstances, it seems to me that, although his Honour ought to have dismissed the application, there was no power to make an order for costs in favour of the defendant on his doing so, and I am in the same position. [21] It follows that the order that his Honour ought to have made on that occasion was that the application be dismissed and that there be no order as to costs. The question remains then what I should do about the costs of the present application. The failure of the solicitor for the defendant to be present before the court on 9 March 2001 was not the fault of the solicitor for the plaintiff. If anything, his actions on the day were an attempt to ensure that the solicitor for the defendant would be available before the court in order to argue the matter. It does not appear that, under the system his Honour was operating, it was expected that the solicitor for the plaintiff would advise the solicitor for the defendant of the hearing date. It might, with the benefit of hindsight, be seen as a wise precaution for him to have done so, but it certainly does not appear that his Honour’s system contemplated that that would occur, or that he was requested to do so. [22] I accept that no message about the matter being heard on that day was in fact received by the solicitor for the defendant, but am unable to determine how that came about. It would, in any case, be unnecessary for me to investigate that issue, since the matter of concern to me is not the way in which the date was fixed, but the fact that the matter did proceed in circumstances where the solicitor for the defendant had previously said at the callover that the matter was contested, but had not turned up. In those circumstances, and given the somewhat informal way in which notice had been given of the hearing date, in my opinion it would have been better if his Honour had not proceeded without first ensuring that the defendant’s solicitor was in fact aware that the matter was to proceed that day, and that his absence was deliberate. -- 7 of 9 -- 8 [23] It is a fundamental requirement of procedural fairness that an order not be made against a party without giving that party the opportunity to be heard. It is, in my opinion, not sufficient to tell the party that an opportunity will be given on a date to be advised, unless some proper procedure is followed subsequently in order to make the party aware of the actual date. The rules of court provide various mechanisms by which that can be done, and other methods can be adopted in particular cases, but in my opinion, when methods other than those specified in the rules of court are adopted, it is important to ensure that they have been effective. In a sense, no harm is done in proceeding in the absence of a party, because that party is entitled to apply under the rules to have the order set aside. If the party was absent because that party had not been advised that the matter would be heard on that day, that would always be an excellent reason for giving that party the opportunity to be heard fully in response to the original application. But this involves additional cost and, perhaps, some additional delay in the entire proceedings. If on 9 March a telephone call had been made to the defendant’s solicitor and his Honour had waited until the solicitor attended and heard his submissions (and then presumably dismissed the plaintiff’s application) further progress might by now have been made in getting the matter ready for trial. At least the additional trouble and expense of the further application and the hearing before me would have been avoided. That, in my opinion, would have been an approach consistent with the provisions of r.5 of the Uniform Civil Procedure Rules. [24] A further difficulty remains in relation to costs of this application. As the defendant has been successful, ordinarily the plaintiff should pay the defendant’s costs of the application, although I would in the circumstances qualify the order so that the costs are payable in any event. However, I cannot so order because of the provisions of s.325(4) of the WorkCover Queensland Act. It cannot be said that the defendant’s application was brought because of unreasonable delay by one of the parties. It was submitted that this was caused by the failure of the plaintiff to respond to any of the correspondence from the defendant in respect of the application, but that was not the cause of this application; this application was made necessary because an order was made on the plaintiff’s application without the defendant having a proper opportunity to be heard. That is not a matter which falls within s.325(4) of the Act, and accordingly I cannot order the plaintiff to pay the defendant’s costs of its application. [25] At the conclusion of the hearing I ordered that the order of 9 March 2001 be set aside, and that the plaintiff pay the defendant’s costs of both applications in any event. That order was made, however, without my having given proper consideration to the effect of s.325(4) of the Workcover Queensland Act 1996. I said then that I would deliver reasons for that order later. In the course of dictating these reasons the true effect of that subsection was realised, and accordingly, I set aside under r.667(1) the order as to costs that I had made. [26] In the circumstances therefore, the order that I make is that the order made on 9 March 2001 be set aside, the application filed 14 February 2001 be dismissed, and -- 8 of 9 -- 9 there be no order as to the costs of the application filed 14 February 2001 or of the application filed 21 March 2001. -- 9 of 9 --