Hayward v Kamlee Pty Ltd[2001] QDC 7

[2001] QDC 007

2021-05-26

District Court of Queensland

McGill SC

Brisbane

Jacqueline Hayward v Kamlee Pty Ltd

No D2030 of 2000

DISTRICT COURT

No D2030 of 2000

CIVIL JURISDICTION

JUDGE McGill SC

JACQUELINE HAYWARD

First Plaintiff

and

KAMLEE PTY LTD (ACN 009 999 759)

First Defendant

and

SEAGO PTY LTD (ACN 011 061 966)

Second Defendant

BRISBANE

DATE 01/02/2001

JUDGMENT

HIS HONOUR: This is an application seeking a stay of the plaintiff's action until the plaintiff has submitted to a medical examination by an orthopaedic surgeon from a panel proposed by the defendant.

The plaintiff commenced a claim seeking damages for personal injury on 22 May 2000. Another application came before me earlier this month seeking a mediation, where the question of a medical examination on behalf of the defendant was raised, and on that occasion I simply refused to order a mediation. I thought at that stage that it seemed unlikely that the matter was going to settle.

The circumstances of this further dispute between the parties have not encouraged me to think that that assessment was inaccurate. The parties seem to have dug in somewhat further in relation to the question of a medical examination.

One matter I should mention is that as a result of the previous application I am aware that this is a matter where apparently the plaintiff's claim is not going to be for a substantial amount.

The plaintiff at that stage had not been recently examined by an orthopaedic surgeon but arrangements have now been made for her to be seen by the surgeon who examined her previously on her behalf for the purposes of a report for a further examination and report. That has been arranged for 20 February 2001.

I should say that I think in the circumstances it would be sensible to wait and see what the outcome of that examination is before considering whether it is appropriate to stay the plaintiff's action, unless she will undertake a medical examination as requested by the defendants.

However, apart from that consideration there is a further difficulty that the defendants face, in that the present application has been filed without first complying with rule 444. This is an application seeking a stay under rule 367 and is therefore, I think, technically an application brought under rule 366.

It is therefore an application under chapter 10 part 1, and therefore an application within rule 443, so that a letter under rule 444 ought to have been sent before it was made, and indeed the applicant ought to have either waited until a reply was received or until the nominated time for replying had passed.

That was not done and although there has been some exchange of correspondence it seems to me that there is no letter which could be described as in substance a letter which complies with rule 444.

Sometimes there is correspondence which covers the ground of rule 444 in a practical sense even though it does not specifically say that it is a letter written under part 8, or even though all of the relevant material is not contained in one letter, and if the practical purpose of the rule has been satisfied then I think a Court should be willing to excuse a technical non-compliance.

However, the correspondence in this case that I have looked at does not, in my opinion, amount to satisfaction in substance with rule 444. The Court of Appeal has indicated that this is a rule which should be taken seriously by Courts and practitioners: Meredith v. Palmcam Pty Ltd [2000] QCA 113. I do not think that there is any justification in the present circumstances of this case in my directing that the matter be heard, at least if that contemplates a hearing today.

If an application were urgent it might be appropriate to direct that it be heard, notwithstanding non-compliance, but far from being urgent, as I have indicated it is an application which really should not be heard, if at all, until sometime in the future.

I have been asked simply to dismiss the application, but I think that a more practical solution is to adjourn it to a date to be fixed, but specify that it is not to be brought on again before 27 February 2001.

I will also record in these reasons that I would expect that it would not be brought on until the report from Dr Gillett had been obtained and provided to the solicitors for the defendant, and after that had been done there had been a letter which did in substance comply with rule 444 sent to the solicitors for the plaintiff, if the defendants still seek an independent medical examination, and after there had been either a reply or the time for reply had expired.

If all of those things were done then bringing this application on again would not leave the plaintiff prejudiced, as compared with the plaintiff's position if the rules had been complied and a fresh application had then been made, and it would at least avoid the necessity for another application to be prepared and filed. I think it also perhaps gives the Court a bit more control over the matter.

I do not propose to incorporate those additional matters in the adjournment order because there are too many circumstances which may arise which would make it inappropriate to, follow strictly what I have just indicated. For example, if there was some undue delay in the defendants' solicitors obtaining a copy of Dr Gillett's report, or if for some reason that examination did not take place, then the situation would be different.

But assuming that those matters do proceed as foreshadowed, then I would expect all of that would occur before the matter comes back to the Court. By recording these matters in these reasons it will be apparent to some other Judge, if the matter comes before that other Judge, what was in my mind at this stage in adjourning the application and what I think are relevant considerations if the matter comes back to Court without all of those matters having been attended to. It will then be a matter for that other Judge to do what is right in the circumstances.

So the orders that I make today are that the application be adjourned to a date to be fixed, not to be brought on before 27 February 2001. In relation to costs, I think the application should not have been made at this time. There has not been compliance with rule 444, and in addition the application should have been postponed until the up-dated report from the plaintiff's expert was available.

I think for those reasons the defendant should pay the plaintiff's costs of the application incurred up to and including today, to be assessed.

If the application then simply goes away the plaintiff is not prejudiced by the fact that the application has been made. If it subsequently is brought on again then the plaintiff is no worse off than if a fresh application is filed. Indeed she might be slightly better off because she will not have incurred the costs of attending and receiving the fresh application when it is served. So those are the orders that I make.