Hamling v Australia Meat Holdings Pty Ltd
[2006] QDC 31
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- Unreported Judgment
- Hamling v Australia Meat Holdings Pty Ltd[2006] QDC 31
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Hamling v Australia Meat Holdings Pty Ltd[2006] QDC 31
Hamling v Australia Meat Holdings Pty Ltd[2006] QDC 31
DISTRICT COURT OF QUEENSLAND
CITATION: | Hamling v Australia Meat Holdings Pty Ltd [2006] QDC 031 |
PARTIES: | MARK HAMLING (Applicant) v AUSTRALIA MEAT HOLDINGS PTY LTD (ABN 14 011 062 338) (Respondent) |
FILE NO/S: | BD4564 of 2003 |
DIVISION: | Civil |
PROCEEDING: | Application for leave to make further submissions |
ORIGINATING COURT: | District Court, Beenleigh |
DELIVERED ON: | 24 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 February 2006 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Application for leave to make further submissions on substantive application currently undecided before the court. |
COUNSEL: | Mr R A I Myers for the applicant. Dr G J Cross for the respondent. |
SOLICITORS: | Trilby Misso Lawyers for the applicant. Abbott Tout Lawyers for the respondent. |
Introduction
- [1]On 4 March 2005 this court heard an application by the defendant in proceeding number BD4564 of 2003, namely Australia Meat Holdings Pty Ltd (“the defendant”) for certain declarations under the WorkCover Queensland Act 1996 (Qld) (“the Act”) and the Uniform Civil Procedure Rules 1999 (“UCPR”) and for a primary order that “pursuant to UCPR 16(e) the plaintiff’s claim and statement of claim be struck out”.
- [2]The plaintiff in the proceeding, Mark Hamling (“the plaintiff”), opposed the application and initially sought an order that the application be dismissed but ultimately submitted that the most appropriate course to adopt with the application was to adjourn it pending the outcome of issues to be addressed in the then current Supreme Court proceedings between the parties[1], which it was further submitted, were “inextricably mixed up with these District Court proceedings”.[2]
- [3]During the course of the plaintiff’s counsel’s oral submissions at the hearing and in his written submissions, issues of estoppel and waiver were raised by him as potential arguments against the defendant’s conduct in the proceedings which could impact upon the relief sought by the defendant, but at that time such issues were not argued before the court because of further proposed interlocutory proceedings in the Supreme Court action.
- [4]Interlocutory proceedings were subsequently filed in the Supreme Court action by the defendant and heard by Chesterman J on 27 April 2005.
- [5]
- [6]The core issue in the application before Chesterman J and the subsequent appeal was whether the granting of leave by a judge of the District Court pursuant to s 305 of the Act to bring a proceeding despite non-compliance with the requirements of s 280 of the Act entitled the plaintiff to bring a proceeding in the Supreme Court. The plaintiff also argued a secondary point that the notice of claim he gave to WorkCover pursuant to s 280(1) of the Act was “a complying notice of claim” thereby entitling him to commence his proceeding pursuant to s 308(1)(a)(i) of the Act as of right.
- [7]On both bases Chesterman J decided against the plaintiff and his decision was upheld by the Court of Appeal. For present purposes it should be noted that the Supreme Court proceedings were completely separate proceedings from the proceedings before this court (although arising out of the same cause of action) and obviously did not involve any consideration of the proceedings before this court.
- [8]On 5 December 2005 plaintiff’s counsel sought leave to make further submissions in this application “before his Honour delivers his decision in the matter”.[5]
- [9]The defendant through its counsel opposed the plaintiff’s request and the court reconvened on 3 February 2006 to hear the parties as to why the plaintiff should be allowed to make further submissions as sought.
- [10]After hearing the parties further the matter was adjourned to allow both parties to provide written submissions on the question of whether the court should allow the plaintiff to make further submissions on the substantive application. A decision on this issue will therefore determine the future conduct of the application.
- [11]Those submissions by each party are now to hand and their respective positions are made clear.
- [12]The supplementary submissions by each party would seem to go beyond merely the question of whether the court should hear further submissions on the substantive argument in the application as they also address comprehensive arguments on the issues of estoppel and waiver which were not argued before the court on 4 March 2005.
- [13]In respect of the plaintiff’s request to make further submissions on the substantive application I give the plaintiff leave to do so and accept all submissions already made to the Court by both parties for that purpose.
- [14]As a consequence, and out of an abundance of fairness to both parties, I give either party liberty to apply within seven (7) days from the date of delivery of this decision to be heard further on the substantive application if either party desires to do so, failing which a final decision will be made on the substantive application on the basis of all submissions currently before the court both orally and in writing.
- [15]My order therefore is that the plaintiff be given leave to make further submissions on the substantive application currently before the court with costs reserved.
Footnotes
[1] See transcript page 20 lines 15-20; page 22 lines 55-60; and page 23 lines 1-30.
[2] See page 23 line 2.
[3] See unreported ex-tempore judgment of Hamling v Australia Meat Holdings Pty Ltd (Supreme Court No BS11360 of 2004) delivered 27 April 2005.
[4] See Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415.
[5] See letter to the court dated 5 December 2005 from Mr Myers of Senior Counsel.