Lippsfield Pty Ltd v O'Neill[2009] QDC 46

HER HONOUR: This is an appeal against the order of a Magistrate striking out a second amended defence and counter-claim. The second defendant is a director of the first defendant Lippsfield Pty Ltd. The defendants are the appellants. The respondent/plaintiff is Lippsfield's former solicitor.

On the 24th of July 2007 the plaintiff solicitor commenced an action in the Magistrates Court to recover unpaid legal fees from the defendants for the amount of $12,870 plus interest. On the 24th of August 2007 the defendants filed a defence disputing the claim on the basis of alleged negligence. On the 14th of November 2007 at a directions conference the parties consented to a direction that: "Either party may apply to set down the matter for trial by writing to the Registry requesting the same at any time after the 30th of January 2008." Consequently, upon the written request of the plaintiff the trial was set down for 24 April 2008.

On the 4th of April the trial was adjourned upon the application of the defendants. Subsequent attempts by the plaintiff to obtain a new trial date were resisted by the defendants.

On the 17th of June the plaintiff sent a request for trial date to the defendants. On the 29th of August the defendants filed a second amended defence and counter-claim.

An application by the plaintiff to dispense with the request for trial date was heard on the 4th of September. At that hearing the Magistrate indicated that leave was required pursuant to rule 380 of the Uniform Civil Procedure Rules for the filing of that second amended defence and counter-claim. His Honour declined to accept an oral application and said the defendant's application to amend had to be on notice to the plaintiff. His Honour allowed the plaintiff 21 days to apply to strike out the second amended defence and counter-claim.

The defendants did not file an application for leave to amend. Instead their solicitor wrote to the plaintiff advising of an intention to make an oral application should leave to amend be required. The plaintiff then brought the application to strike out the pleading on the basis that the pleadings were defective or that leave was required.

The defendants contended that leave was not required or, if it was, the defendants should have been permitted to make an oral application for leave to amend.

The Magistrate struck out the second amended defence and counter-claim on the basis that it had been filed without leave in contravention of Rule 380. His Honour refused to hear the defendants’ oral application for leave but gave them seven days to file an application for leave to amend. The defendants did not file an application for leave to amend. The notice of appeal was filed in this Court by them 20 days after the Magistrate’s order was made.

The first ground of appeal is that the Magistrate erred in finding that the defendants required leave pursuant to Rule 380 to make the amendments set out in the second amended defence and counter-claim. The rules provide for the amendment of pleadings as-of-right up to the filing of a request for trial date. After that time leave must be obtained. That is the effect of Rules 378, 380 and 470. Their terms are very clear. Rule 380 provides: "An amendment after the filing of the request for trial date may only be made with leave of the Court." Rule 470 is in similar terms.

Clearly, whether or not leave to amend was required in the present case must depend upon whether a request for trial date had been filed. This is the pre-condition to operation of Rules 380 and 470. Rule 378 would otherwise permit amendment as often as necessary.

The question of whether a request for trial date had been filed was not ventilated below. The respondents submission before the Magistrate relied upon the fact that the matter had previously been listed for trial. The formulation of the submission was misconceived. A listing for trial is not the circumstance which closes pleadings under Rules 380 or 470. Nonetheless, this was the basis of the successful application to strike out the pleadings under Rule 380.

After an exchange with counsel, the Magistrate's reasons were brief. He said he struck out the second amended defence and counter-claim because "It's not filed with leave of the Court."

Argument on appeal crystallised a dispute about how the trial came to be listed. The document which triggered the listing had not previously been put into evidence and counsel for the appellant objected to its tender on appeal. I received the document. It was not fresh evidence. It was a document created by the respondent and therefore clearly available to him at the time of the hearing but it was correspondence on the Court file and its existence had been disclosed to the appellants before the hearing below.

Because the way in which the matter came to be listed for trial was of critical importance to the principal ground of appeal I took the view that there were exceptional circumstances which warranted the receipt of the material. The document in question was a letter dated 1 February 2008 from the respondents solicitor to the Registrar requesting that the trial be set down in accordance with the consent direction of 14 November. It purported to enclose a request for trial document signed by the respondents solicitor. The enclosure referred to as the request for trial document is not in evidence. It is not claimed that the appellants had signed it.

Previous affidavits and outlines from the respondent referred to the document being sent to the Registrar rather than filed. The respondent contends that the correspondence of 1 February should be taken to be a filing of a request for trial date for the purpose of Rule 380.

By virtue of Rule 467, unless a Court otherwise orders, a claim cannot be set down for trial unless a request for trial signed by all parties has been filed. Rule 469 defines what will constitute the request for trial date: It must be in the approved form, it must be signed by both parties unless the Court has dispensed with the signature of a party.

It follows that the document described as a request for trial document signed only by the respondent could not be a request for trial, as referred to in the rules, unless a Court had dispensed with the signature of the appellants. The only order of possible relevance was the consent direction of 14 November 2007. Consistent with Rule 467, subrule 2, it provided an alternative mechanism for the listing of the trial so that the filing of a request for trial signed by both parties was not necessary.

Did the consent direction amount to an order dispensing with the signature of one party? It did not mention either a request for trial date document or the filing of such a document. In my view, it could not be stretched to imply a dispensation of aspects of a form document which it did not mention and which it did not require. It offered an alternate process of listing without use of a request for trial date form.

The conclusion that there was no dispensation of the signature of both parties means that no request for trial date was filed. If no request for trial date was filed, neither rule 380 nor 470 applied. The appellants did not require leave to file their amended their defence and counter-claim. The entitlement to amend under Rule 378 was not lost just because the process for listing for trial had been modified.

The twin preconditions of a request and the filing of the request in Rule 380 still had to be satisfied. This was the approach taken by Douglas J in Interline Hydrocarbon v Brenzil [2005] QCA 109 where a previous order dispensing with the need for filing of a request did not bring Rule 380 into operation.

It follows on proper construction that this case fell outside of Rule 380; the Magistrate erred in acting upon that rule to strike out the pleadings; the appeal is allowed. It is not then necessary to consider the alternate grounds relating to the refusal of leave to amend.

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