Southport Motors Pty Ltd v State of Queensland
[2004] QSC 173
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Southport Motors Pty Ltd v State of Queensland[2004] QSC 173
- Add to List
Southport Motors Pty Ltd v State of Queensland[2004] QSC 173
Southport Motors Pty Ltd v State of Queensland[2004] QSC 173
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
HELMAN J
No 3290 of 2003
SOUTHPORT MOTORS PTY LTD | Plaintiff |
and |
|
STATE OF QUEENSLAND AND CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS | Defendant |
BRISBANE
DATE 12/05/2004
JUDGMENT
HIS HONOUR: There are two applications before the Court. By an application filed on 27 April 2004 the defendant State of Queensland sought declarations that this proceeding had not been properly started and that it had not been properly served. By a cross-application filed on 10 May 2004 the plaintiff sought: a declaration that service of the claim and statement of claim on the defendant was effected before 11 April 2004; further, and in the alternative, a declaration pursuant to rule 117 of the Uniform Civil Procedure Rules 1999 that the defendant was served before 11 April 2004; alternatively, that pursuant to rule 371 of the Uniform Civil Procedure Rules the Court waive any irregularity in respect of service; alternatively, that pursuant to rule 24 of the Uniform Civil Procedure Rules the Court order that the claim be renewed for a period of twelve months and that the plaintiff be at liberty to re-serve its claim and statement of claim.
I shall refer later to the provisions of rules 117 and 24. It suffices to mention now that rule 371(1) provides that a failure to comply with the rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
The plaintiff began this proceeding by claim on 11 April 2003. It claimed $3 million damages from the State of Queensland and Chief Executive, Department of Main Roads. The latter is not a corporation sole and the claim is pursued only against the State of Queensland. The claim arises out of an event that took place on 24 April 1997: the response by the Queensland Department of Main Roads to an application for information concerning “land requirements for road purposes”.
On 27 April 2004 the defendant filed a conditional notice of intention to defend, the solicitor for the named defendants was shown as Mr C.W. Lohe, the Crown solicitor, and his address as 11th Floor, State Law Building, 50 Ann Street, Brisbane Qld 4000.
Section 19(1) of the Crown Proceedings Act 1980 is the provision concerning service of proceedings on the Crown relevant to this case:
“19 Service of documents
- Subject to any other Act or law or any practice, a document or other writing required to be served on the Crown for the purposes of or in connection with a proceeding by or against the Crown shall be served on the crown solicitor and service of a document or other writing in accordance with this subsection shall be duly effected if it is left at the office of the crown solicitor with some responsible person.”
The claim has not been served on the Crown solicitor in compliance with s. 19(1) of the Crown Proceedings Act, although it was conceded on behalf of the Crown that it came into the Crown solicitor's possession on 14 April 2004, i.e., after the claim became stale.
The plaintiff's solicitors had attempted to serve the claim by a letter dated 29 March 2004 addressed to:
“Chief Executive of the Department of Transport
State of Queensland
State Law Building
Cnr Ann and George Streets
BRISBANE Queensland 4000”
The document went to the Legal and Legislation Branch of Queensland Transport on 2 April 2004, and, as I have said, did not come into the possession of the Crown solicitor until 14 April 2004.
Rule 117 in chapter 4 (service) of the Uniform Civil Procedure Rules provides for informal service:
“117 If—
- for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
- the court is satisfied on evidence before it that the document came into the person's possession on or before a particular day;
the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person's possession or another day stated in the order.”
On behalf of the plaintiff it was argued that that rule could be relied on to establish informal service on the Crown on 14 April 2004 which, though not effective, was not a nullity, but an irregularity the Court may waive under rule 371, but only if it is proper to renew the originating process: Gillies v. Dibbetts [2001] 1 Qd.R. 596 at p. 603, para. 22, per Wilson, J. with whom McPherson and Thomas, JJ.A. agreed.
The possible application of rule 117 to this case was not challenged on behalf of the Crown, but what was challenged was the next step in the plaintiff's argument that in the circumstances (the attempted but ineffective service by the letter of 29 March 2004, the informal service on 14 April 2004, the brevity of time before 14 April 2004 that the claim was stale, the negotiations that had taken place before the attempted service, and the inability of the Crown to point to any specific prejudice arising from the plaintiff's delay) renewal of the claim should be permitted under rules 7 and 24. That can be done, as rule 24(2) provides, if reasonable efforts have been made to serve a proposed defendant or if there is “another good reason” to renew the claim. It would be an exaggeration to say that reasonable efforts were made to serve the Crown in this case. Clearly, care was not taken - as it should have been - to determine what the requirements of s. 19 of the Crown Proceedings Act were and to comply with them. But what happened could validly be described as a near-miss as to place: the claim was sent to the right building but was addressed to the wrong Crown servant. There was another near-miss too - as to time: the Crown solicitor had the claim in his possession on 14 April 2004. Those circumstances can properly be regarded, I think, as constituting another good reason to renew the claim.
On behalf of the Crown it was argued that prejudice may be assumed from the affluxion of time and that no satisfactory reason was advanced for the plaintiff's failure to serve the Crown effectively before the claim became stale. Although some such prejudice could no doubt have been suffered by both parties and no truly satisfactory reason was advanced for the failure effectively to serve the Crown, the circumstances I have mentioned, including the Crown's conceded inability to show specific prejudice, lead me to conclude that the plaintiff should have the renewal sought.
…
HIS HONOUR: These will be the final orders: I declare that the proceedings have not been properly started or served.
I order that the plaintiff's claim be renewed from and including 12 April 2004 to and including 31 May 2004.
I order that the plaintiff pay to the defendant its costs of and incidental to the applications to be assessed.