Clark v Clark [2000] QSC 378

.S ~ t R 1. B ::·~~:.;.Queensland Government . .. ta e e po r Ing LI rea LJ ,'=\}.) O~pJr:.~~ncofJusticondAl{orney•Genml 4007b <;c 00 /s78 Transcript of Proceedi-ng.s Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HOLMES J No 1089 of 1995 ALLYSON JANE THERESA CLARK and LINCOLN ROGER CLARK BRISBANE .. DATE 13/10/2000 JUDGMENT " Floor, The Law Courts, George Street, Brisbane, 0. 4000 1 REVISED coP1Es 1ssuco / State Reporting 8ure2u I Date!?/ lo I e-o ! Plaintiff Defendant Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 13102000 T2/RB28 M/T 8396/2000 (Holmes J) HER HONOUR: This matter is an application on the papers for variation of an order made by Justice Thomas, as he then was, on 28 April 1998. His Honour made three orders. The first granted leave to amend the statement of claim by deleting in paragraph 7A the words "prior to" and replacing them with 11 from at least as early as". The second reserved the defendant's application for further particulars at paragraph 7A and 7B of the statement of claim until after discovery. The third ordered that the plaintiff provide within 28 days of the order further particulars of - and then there are eight subparagraphs (a) to (h) setting out the paragraphs of the statement of claim of which further particulars were sought, with the exception of (h) which required particulars of the claim for exemplary and aggravated damages. The plaintiff now seeks an order that his Honour's order be varied by deleting all of those orders except for subclause 3(h). That is the paragraph requiring provision of particulars of the claim for exemplary and aggravated damages. The application is made on the papers. I should say that there is an alternative order sought that the Court amend the existing order to the same effect by removing clauses 1, 2 and 3 save for subclause 3(h) or deeming those orders to be satisfied. 2 JUDGMENT 1 10 2 30 40 50 60 -- 2 of 5 -- 13102000 T2/RB28 M/T 8396/2000 (Holmes J) I propose to dismiss the application. In the first instance, although it is asserted in the application that it is to be served on the first defendant, there is no evidence at all that that occurred. to be entirely pointless. Secondly the application appears According to the affidavit of Mr William Ferguson, solicitor, the statement of claim was not amended because the solicitors were occupied with other matters related to the action. In the submissions of the solicitors, although - this is not asserted in Mr Ferguson's affidavit, it is said that the amendment was only referrable to an action against the second defendant which has now been discontinued. However that may be, his Honour's order gave leave to amend. It did not direct an amendment. That leave ceased to have effect 14 days after it was given by virtue of order 32, rule 8 of the Supreme Court Rules. I cannot see what possible point there can be in amending the order in this regard. The second order was that the defendant's application for further particulars of paragraph 7A and B be reserved until after discovery. The order's reference to ''defendant" was expressed in the singular. The material before me gives no information as to which defendant it concerned or what outcome there was. There may well be on foot an application by the first defendant for particulars of those paragraphs which has not, in fact, been resolved. I cannot ascertain 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 5 -- 13102000 T2/RB28 M/T 8396/2000 (Holmes J) whether, on the material before me, that is the case; it is simply silent as to that aspect of the order. It is said in the affidavit that paragraph 3 of the order has been complied with. That makes it a mystery as to why the application seeks to delete all but paragraph 3(h). In any case I can see no basis whatever for deleting paragraph 3. If the plaintiff has complied with that part of the order she has no basis for concern, and certainly there seems no reason to rewrite history, in effect, by removing the requirement pursuant to which she complied. If she has not, there is even less reason why the requirement should be dispensed with. The application makes very little sense. It is said that the amendments are needed to obtain interlocutory judgment. The precise words of the submission are, 11 The plaintiff has sought interlocutory judgment but has been unable to do so because paragraph 1 of the order has not been complied with 11 • The affidavit sheds no light on that statement and I am none the wiser as to whether there has been an application which has been unsuccessful, or the plaintiff has in mind the making of such an application. I have great difficulty in seeing how it is that the plaintiff considers she cannot ~uccessfully make such an application without the amendment of the existing order by deletion of the leave to amend. 4 JUDGMENT 1 10 2 30 40 50 60 -- 4 of 5 -- 13102000 T2/RB28 M/T 8396/2000 (Holmes J) In any event no basis is shown for alteration of the existing order. The application makes very little sense, there is inadequate evidence, and it has not been served. I dismiss it accordingly. 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 5 --