Hickson v Hail Creek Coal Pty Ltd
[2023] QSC 196
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
- Hickson v Hail Creek Coal Pty Ltd[2023] QSC 196
- Add to List
Hickson v Hail Creek Coal Pty Ltd[2023] QSC 196
Hickson v Hail Creek Coal Pty Ltd[2023] QSC 196
SUPREME COURT OF QUEENSLAND
CITATION: | Hickson v Hail Creek Coal Pty Ltd [2023] QSC 196 |
PARTIES: | CRAIG THOMAS HICKSON (plaintiff) v HAIL CREEK COAL PTY LTD ACN 080 002 008 (defendant) |
FILE NO/S: | No 6280 of 21 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 29 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGE: | Brown J |
ORDER: | Pursuant to r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld), the Court renew the claim filed on 2 June 2021. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiff seeks an order to renew its claim filed 2 June 2021 – where the period of renewal is greater than the one-year period contemplated by s 24 of the Uniform Civil Procedure Rules 1999 (Qld) – where the proceedings were filed with the defendant’s agreement – where the proceedings were stayed by agreement until the plaintiff complied with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) – whether the claim should be renewed Uniform Civil Procedure Rules 1999 (Qld) Personal Injuries Proceedings Act 2002 (Qld) Babcock & Brown Pty Ltd v Arthur Anderson [2010] QSC 287 Gillies v Dibbetts [2001] 1 Qd R 596 |
SOLICITORS: | Butler McDermott Lawyers for the plaintiff |
- [1]The plaintiff seeks an order to renew the claim filed on 2 June 2021. The period of renewal is greater than the one-year period contemplated by r 24 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). However, the Court may renew a claim for a greater period in exercise of its general power to extend a time set under r 7 of the UCPR.[1]
- [2]Relevant to this application, the plaintiff must satisfy the Court that there is good reason to renew the claim. Prejudice to a defendant as a result of the delay is a relevant consideration in determining whether there is a good reason for renewal,[2] at least in circumstances where the plaintiff does not seek to establish that reasonable efforts have been made to serve the defendant.[3] The plaintiff does not seek to establish it made such efforts.
- [3]In the present case, the proceedings were filed after the defendant agreed to the commencement of the proceedings pursuant to s 44 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).[4] By the agreement reached between the parties in May 2021, the proceedings were stayed until the plaintiff complied with Chapter 2 Part 1 of PIPA unless the proceeding is discontinued or otherwise ends.[5] A notice of claim sworn 19 February 2021 had been forwarded to the defendant’s solicitor by the plaintiff’s solicitor on or about 31 March 2021.
- [4]The claim and statement of claim were filed on 2 June 2021. No steps were taken to renew the claim nor to serve it. The plaintiff served its Part 2 notice of claim pursuant to PIPA on 6 March 2023. On 17 July 2023, the plaintiff participated in a compulsory conference with the defendant pursuant to s 36 of PIPA and the plaintiff’s employer, Colecare Pty Ltd, pursuant to s 289 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), having commenced a concurrent damages claim against his employer.
- [5]The matter did not settle at the conference. Mandatory offers were exchanged pursuant to s 39 of PIPA and those offers have lapsed. The plaintiff is now entitled to prosecute the proceedings against the defendant, having complied with the provisions of Chapter 2 Part 1 of PIPA, and thus seeks to serve its claim and statement of claim.
- [6]Notwithstanding that the proceedings were stayed under PIPA, plaintiffs should ensure that claims and statement of claims are renewed in accordance with r 24 of the UCPR.
- [7]There is, however, evidence that the defendant was aware of the claim since March 2021, entered into an agreement pursuant to s 44 of PIPA so that the claim and statement of claim could be filed to preserve time, and then engaged in the steps required under PIPA in 2023. In those circumstances, I am satisfied that the renewal does not cause significant prejudice to the defendant.
- [8]The application has been made ex parte, as permitted by the UCPR. The defendant may however apply to the Court to have the renewal set aside.[6]
- [9]In all of the circumstances, I am satisfied notwithstanding that almost two years have passed since the filing of the proceedings that the claim should be renewed pursuant to s 24(2) of the UCPR. I will make the order in accordance with the draft.
Footnotes
[1]Gillies v Dibbetts [2001] 1 Qd R 596 at [21].
[2]Gillies v Dibbetts [2001] 1 Qd R 596 at [23] per Wilson J.
[3]Gillies v Dibbetts [2001] 1 Qd R 596 at [22] per Wilson J.
[4] Exhibit GBC-1 to the Affidavit of George Benn Cowan (CFI 2).
[5] Exhibit GBC-1 to the Affidavit of George Benn Cowan (CFI 2).
[6] See Babcock & Brown Pty Ltd v Arthur Anderson [2010] QSC 287 at [54]–[55].