DISTRICT COURT OF QUEENSLAND
CITATION:
Thwaites v Austin & Ors [2018] QDC 11
PARTIES:
Calum Martin Thwaites
(Plaintiff)
v
Alan Austin
(First Defendant)
Independent Australia Pty Ltd CAN 156 231 524
(Second Defendant)
David Donovan
(Third Defendant)
FILE NO/S:
3867/2017
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
19 February 2018
DELIVERED AT:
Brisbane
HEARING DATE:
19 February 2018
JUDGE:
Andrews SC DCJ
ORDER:
The plaintiff’s application filed 29 January 2018 is adjourned to the civil list and be listed for one day on 27 February 2018.
The first defendant’s application filed 8 February 2018 be adjourned to the civil list and be listed on 27 February 2018.
CATCHWORDS:
PRACTICE AND PROCEDURE – Applications list or civil list
COUNSEL:
Morris QC for the plaintiff
Nelson for the first defendant
SOLICITORS:
Slade Waterhouse Lawyers Pty Ltd for the first defendant
An application which cannot be completed within 2 hours should not ordinarily be set down in the applications list. It should ordinarily be set down in the civil list. Currently, the civil list is such that there would be very little delay involved. The estimate of time to complete the application should take into consideration the time for:
1. Announcing appearances;
2. The advocates to identify the applications and affidavits upon which they rely;
3. The judge to read those documents, or preferably, for the relevant parts of the applications and the affidavits to be adequately summarised by counsel;
4. The judge to read the written outlines of submissions;
5. Each advocate to make oral submissions;
6. The applicant’s advocate to make oral submissions in reply;
7. The judge to make the orders; and
8. The judge to give ex tempore oral reasons, if the parties require them.
The plaintiff’s 21 page application, bearing an estimate that it will take 2 hours, is the first filed. The plaintiff applies[1] against only the first defendant (“Austin”) for relief. The plaintiff applies for the court to determine about 226 matters. In summary, they are:
[1]Document 21 filed 29 January 2018.
1. Orders to strike out 8 paragraphs (21 and 76A to 76G) of the first defendant’s amended defence[2] (“AD”) on the grounds that they constitute the withdrawal of admissions without leave, contrary to r 188 of the UCPR [8 discrete matters];
[2]Filed 22 January 2018, document 20 which is a pleading relied upon by only the first defendant.
2. Further or alternatively to 1, orders that those 8 paragraphs, another 23 sub-paragraphs and five sets of particulars in the AD be disallowed pursuant to r 379 of the UCPR [36 discrete matters];
3. Declarations that various matters in the amended statement of claim (“ASOC”) are, pursuant to r 166 of the UCPR, taken to be admitted by the first defendant (because of the way the first defendant, in the AD, phrased his pleas to those matters) [53 discrete matters];
4. Orders to strike out 21 non-admissions in the AD, pursuant to UCPR r 171 or the “inherent jurisdiction” [21 discrete matters];
5. Alternatively to order 4, orders pursuant to r 367 of the UCPR or the Court’s “inherent jurisdiction” that the first defendant or his solicitor make, file and serve an affidavit or affidavits deposing to the nature of the “reasonable enquiry” and the results of each such reasonable enquiry referred to in 21 paragraphs of the AD [21 discrete matters];
6. Orders to strike out 80 parts of the AD pursuant to r 171 of the UCPR or the “inherent jurisdiction” [80 discrete matters]; and
7. Further and better particulars of 7 paragraphs and of two sets of particulars of the AD [9 discrete matters].
The first defendant’s 4 page cross application[3], bearing an estimate that it will take 40 minutes, is the second filed. It seeks further and better particulars of 18 paragraphs of the ASOC and seeks the striking out of 49 paragraphs [67 discrete matters].
[3]Document 23 filed 8 February 2018.
A practice direction[4] requires that outlines of argument not exceed 4 pages. The outlines of argument by Queen’s Counsel for the plaintiff are 18 pages on the plaintiff’s application. The plaintiff provides only 2 pages of outline on the defendant’s application, though the outline refers the reader to further arguments in a rule 444 letter and a rule 445 letter and to further submissions advanced (presumably in writing) on the hearing of another application.
[4]District Court of Queensland Practice Direction Number 1 of 2017.
The outlines of counsel for the defendant in support of the defendant’s application are 13 pages and, in opposition to the plaintiff’s application, 7 pages.
Neither application could be determined in 2 hours. The plaintiff’s application might sensibly have been set down for two days, with a direction that the parties and their lawyers be at liberty to absent themselves on the first day so that the court could use the first day to read the material. Each application is appropriate for listing in the civil list. Neither application should remain in the applications list.