Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 2 – Starting Proceedings
- Part 1--Starting proceedings
- [08] Starting proceedings
- [09] Claim compulsory
- [10] Application compulsory
- [11] Application permitted
- [12] Oral application permitted
- [13] Proceeding incorrectly started by claim
- [14] Proceeding incorrectly started by application
- [15] Registrar may refer issue of originating process to court
- [16] Setting aside originating process
- [17] Contact details and address for service
- [18] Representative details required
- [19] Originating process must be signed
- [20] Copy of originating process for court
- [21] Application of pt 3
- [22] Claim
- [23] Claim must include statement about filing notice of intention to defend claim
- [24] Duration and renewal of claim
- [25] Application of pt 5
- [26] Content of application
- [27] Service of application
- [28] Service of affidavit in support of application
- [29] Notice of address for service
- [30] Consent adjournment
- [33] Central registry
- [34] Application of div 2
- [36] Application of div 3
- [37] Extended area of Magistrates Courts districts
- [38] Objection to venue
- [39] Change of venue by court order
- [40] Change of venue by agreement
- [41] Consequences of transfer
- [50] Applications heard at a different location
- Division 1--Central registry
- Division 2--Starting proceeding other than in central registry
- Division 3--Area of Magistrates Courts districts
- Division 4--Objection to, and change of, venue
- Division 5--Applications heard at a different location
[08] Starting proceedings go to top
Although r 8(1) provides that a proceeding starts when the originating process is issued by the Court, the proper characterisation of a proceeding after a person has been included as a party for the purpose of r 69, in respect of the party so included, is set out in r 74(4): Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46, [24] (Williams JA, Douglas J agreeing).
It is open to a party seeking to challenge an adjudicator’s decision made under the Building and Construction Industry Payments Act 2004 (Qld) for jurisdictional error to bring an application under r 8 for appropriate orders, including restraining orders, or seeking directions: Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, [77] (White JA, Margaret McMurdo P and Chesterman JA agreeing).
[09] Claim compulsory go to top
In accordance with r 9, the primary method of commencing a proceeding under the UCPR is by claim: Wynch v Ketchell [2002] 2 Qd R 560, [11] (Thomas JA, Davies JA and Williams JA agreeing).
A court may dismiss an originating application if it does not satisfy the requirements of r 11 permitting commencement by application, and should have been commenced by claim as required by r 9: Maguire v Lynch [2007] QCA 290, [5] (Holmes JA, Jerrard JA and Phillipedes J agreeing).
[10] Application compulsory go to top
The meaning of “Act”
The reference in r 10 to “an Act”, is a reference to an “Act” as defined by the Acts Interpretation Act 1954 (Qld), which means an Act of the Queensland Parliament including certain Imperial and New South Wales Acts as there defined: Wynch v Ketchell [2002] 2 Qd R 560, [12] (Court of Appeal, Thomas JA, Davies JA and Williams JA agreeing).
Applications under Corporations Act
The effect of the operation of the rules in respect of a proceeding under s 459G of the Corporations Act 2001 (Cth) is that r 10 obliges an applicant relying upon that provision to proceed by way of originating application: Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2005] 1 Qd R 12, [14] (Chesterman J).
Actions seeking payment of a debt
Ordinarily a proceeding to recover a debt should be brought by claim and a statement of claim, and the plaintiff may then make an application for summary judgment where appropriate at any time after the defendant files a notice of intention to defend: National Vegetation Management Solutions Pty Ltd v Shekar Plant Hire Pty Ltd [2010] QSC 3, [25] (Margaret Wilson J).
Example of non-applicability
Section 38 of the Partnership Act 1891 (Qld) is concerned to empower a partner to seek the relief which is stated and to confer on the court jurisdiction to grant it in the event that that is justified. That provision was not concerned with procedural matters such as the appropriate originating process, which is dealt with in the UCPR. Accordingly, s28 of the Partnership Act 1891 (Qld) does not permit proceedings to be started by application or require or permit an application in terms of r 10 of the UCPR: Rayment v Bower [2001] QSC 491, [7] (Moynihan J).
[11] Application permitted go to top
Even though a proceeding under a Commonwealth Act is not required to be made by application pursuant to r 10, such a proceeding may be permitted under r 11 in appropriate circumstances: Wynch v Ketchell [2002] 2 Qd R 560, [12], [14] (Court of Appeal, Thomas JA, Davies JA and Williams JA agreeing).
[12] Oral application permitted go to top
Rule 12 is to be applied in view of r 5 and it is relevant to the exercise of discretion permitting an application to be made orally, that the applicant is unrepresented: Gel Custodians Pty Ltd v R.Q. Consultants Pty Ltd [2010] QSC 173, [7] (McMeekin J).
[13] Proceeding incorrectly started by claim go to top
By the operation of rr 13 and 14, if a proceeding is commenced in an incorrect way, the Court may order that it continue as if commenced in the correct way and give any necessary directions: National Vegetation Management Solutions Pty Ltd v Shekar Plant Hire Pty Ltd [2010] QSC 3, [25] (Margaret Wilson J).
[14] Proceeding incorrectly started by application go to top
By the operation of rr 13 and 14, if a proceeding is commenced in an incorrect way, the Court may order that it continue as if commenced in the correct way and give any necessary directions: National Vegetation Management Solutions Pty Ltd v Shekar Plant Hire Pty Ltd [2010] QSC 3, [25] (Margaret Wilson J).
It is not uncommon for a party to seek interim relief from the court by originating application, and then after the relief has been granted, to seek an order under r 14 that the proceeding proceed as though started by claim, with appropriate directions: Mbuzi v SV Partners [2012] QSC 84, [10] (Mullins J).
It is not a foregone conclusion that a party who incorrectly commences a proceeding by way of originating application will obtain an order from the court pursuant to r 14. Whether such an order ought be made lies in the Court’s discretion: Mbuzi v SV Partners [2012] QSC 84, [18] (Mullins J).
A proceeding alleging contempt is properly commenced by application: Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490, [48] (Philip McMurdo J, Mackenzie JA and Phillipides J agreeing).
Interaction with r 293
A party is unable to rely on r 293 of the UCPR to pursue summary judgment where the proceeding has been commenced by application and the court does not make an order under r 14 that the proceedings continue as if started by claim. However, this does not prevent a court from determining a proceeding summarily in reliance on the jurisdiction conferred by r 16 or based on the court’s inherent jurisdiction. In those circumstances, the test to be applied is the same as set out in respect of r 293: Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211, [53] (Mullins J).
[15] Registrar may refer issue of originating process to court go to top
Meaning of “vexatious” legal proceedings
Whether a proceeding is vexatious or oppressive will turn on the circumstances of the case and include public policy considerations and the interests of justice: Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, [37] (McMurdo P, Williams JA and Atkinson J).
In assessing whether a proceeding is vexatious, regard can be had to the matters identified by the Court of Appeal in Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271, [35] and Re Cameron [1996] 2 Qd R 218 at 220: Rowe v Emmanuel College & Schulz [2013] QCA 326, p.2 (per Lyons J, Fraser JA and McMeekin J agreeing). In Re Cameron [1996] 2 Qd R 218, 220, Fitzgerald P said:
It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 66 ALJR 810; Jones v Cusack (1992) 66 ALJR 815, and Attorney-General (NSW) v West (NSW Common Law Division No 16208 of 1992, 19 November 1992, unreported).
Interaction with r 389A UCPR
Although there are no definitions of “frivolous”, “vexatious” or “an abuse of process” in r 389A, it might be inferred, in addition to the meaning which has been accorded to those expressions where they appear in other rules, for example, rr 15, 162 and 171, and in authorities such as Williams v Spautz considering abuse of process, that resort might also be had to the provisions of the Vexatious Proceedings Act 2005 (Qld) in construing the meaning of the terms for the purpose of the rules: Hambleton v Labaj [2011] QCA 17, [26] (Court of Appeal, White JA, McMurdo P and Cullinane J agreeing).
[16] Setting aside originating process go to top
Standing
If a party lacks an interest that would entitle it to maintain an action, an application can be made by a defendant pursuant to r 16(e) to set aside the originating process. However, the discretion ought only be exercised where a plaintiff’s lack of a cause of action can be clearly demonstrated: Custodial Ltd v Cardinal Financial Services Ltd [2005] 2 Qd R 115, [1]-[2] and [58]-[59] (Atkinson J), citing Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129.
Authority
An application to set aside an originating process may be based upon a lack of authority of those purporting to conduct the proceedings to do so on behalf of the plaintiff or applicant: Beenleigh Housing & Development Company Ltd v Isaiah Jumeirah Kahrter Pty Ltd [2017] QSC 170 (Burns J) at [12] (and authorities cited at fn 18).
Forum non conveniens
When considering whether to set aside an originating process for forum non conveniens the relevant question is whether the defendant has persuaded the Court that, having regard to the circumstances of the particular case and the availability of the foreign tribunal, the present Court is a clearly inappropriate forum for the determination of the dispute: Bradley v Placements (PNG) Ltd [2014] QSC 16, [4] (Daubney J), citing Oceanic Sunline Shipping Co Inc v Fay (1998) 166 CLR 197, 247-248 (Deane J); Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 564-5.
Interaction with r 144 UCPR
The failure to comply with r 144(4) may have some effect on the status of the original conditional notice of intention to defend by converting it into an unconditional notice, but that does not affect a defendant’s ability to apply for a stay under r 16 of the UCPR: Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155, [30] (Daubney J).
Where a party files a conditional notice of intention to defend under r 144 but does not apply for an order under r 16 and instead invokes other rules of Court as a way of disposing of the claim, the court may construe that party as having abandoned the idea of participating in the proceeding only conditionally: Body Corporate for the Watermark North v Ferris & Global Management Corporation (Qld) Pty Ltd [2012] QDC 223 [16]- [17] (Robin QC DCJ).
Interaction with r 293
An application under r 16 to end an originating application summarily, which, in substance, seeks summary judgment, should be determined by adopting an approach that is no less stringent than that which applies to the determination of a summary judgment application, for the purpose of r 293(2) of the UCPR: Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211, [53]-[54] (Mullins J).
[17] Contact details and address for service go to top
A party who designates an address for service under rr 17(6) and 17(1)(a)(i) of the UCPR, that is not their actual residential or business address, will nevertheless be bound by that designation: Wilson v Orreal [2012] QSC 315, [47] (McKeekin J).
For the purpose of r 17(5), where there is a change of address of the solicitors acting for a party, it is not sufficient for the change to be noted in the footer of the next document filed with the court. The notice of change of address should be served in the proper form: Edwards v Cornock [2005] QDC 271, p.10 (Robin QC DCJ).
In general, co-plaintiffs, whether in a single original action or in an action consisting of consolidated actions, must be jointly represented by solicitor and counsel. In a proper case, an order may be made authorising separate representation, but this is rare and should only be done to avoid injustice: Cart Provider Pty Ltd v Park [2016] QSC 277 (Bond J) at [18]-[23]; Parbery v QNI Metals Pty Ltd [2018] QSC 83 (Bond J) at [12] ff.
[18] Representative details required go to top
Agent for undisclosed principal
Rule 18 is not to be interpreted as defeating the substantive right of an agent for an undisclosed principal to sue on the contract in its own name. Accordingly, r 18 does not oblige such an agent to reveal the identity of its principal in the originating process: IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, [26]-[27] (Jerrard JA), [44] (Mackenzie JA) and [90] (Wilson J).
Failure to state representative capacity
A breach of r 18 does not affect a party’s entitlement to bring an application. Accordingly, the failure to identify that an application was commenced as liquidator of a company, can, in appropriate circumstances be addressed as correcting a misnomer, within the meaning of r 375(3): [2010] 80 ACSR 186 [2010] QCA 257, [17] (Holmes JA, Fraser JA and Chesterman JA agreeing).
Executor or administrator
Rule 18 is capable of applying to a person suing as the executor or administrator of a deceased estate: Bowman v Brown [2004] QPELR 416, [47] (McGill DCJ), citing Fearnley v Berry [1924] St R Qd 280; Bowler v John Mowlem & Co [1954] 1 WLR 1445; Turley v Kassulke [1970] QWN 24.
[19] Originating process must be signed go to top
An originating process which bears a signature produced by a stamp, is a valid signature for the purpose of r 19: [2005] 59 ATR 766 [2005] QSC 206, [11] (Cullinane J).
[20] Copy of originating process for court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[21] Application of pt 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[22] Claim go to top
Rule 22 does not require that the claim itself state the relief sought, in order to support a cause of action sought to be established for the purpose of a period of limitation under an applicable statute. When read together with the requirements of r 149 it is sufficient for this purpose if the relief sought is included in the statement of claim attached to the claim: Cousins Securities Pty Ltd v CEC Group Limited [2007] QCA 192, [9]-[10] (McMurdo P), [30], [37] (Holmes JA).
Whether a claimant, who has failed to specifically articulate in the originating process the relief which is ultimately sought, is precluded from obtaining that relief will depend upon the individual circumstances of the case. A pivotal consideration is fairness: Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd (No 2) [2018] QSC 133 (Henry J) at [21].
Interaction with r 292
By reason of the terms of r 292, a plaintiff cannot seek summary judgment for relief which is not within its claim as filed or as duly amended: Equititrust Ltd v Gamp Developments Pty Ltd (No 2) [2009] QSC 168, [10] (Applegarth J), citing Equititrust Ltd v Gamp Developments Pty Ltd [2009] QSC 115, [12] (McMurdo J).
[23] Claim must include statement about filing notice of intention to defend claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[24] Duration and renewal of claim go to top
Introduction
Rule 24(1) establishes the general proposition that a claim is to be in force for the purpose of service for one year. The principal purpose of r. 24(1) is to afford a plaintiff ample opportunity to effect service upon the defendant. Rule 24(2) makes provision for renewal in cases where there is good reason for renewing the claim even though it has not yet been served on the defendant. For example, rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs. However, the discretion conferred by r. 24(2) of the UCPR falls to be exercised in a context which includes r. 5 which states the philosophy of the UCPR. Thus any conduct of proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion granted in r 24(2). A party who does not proceed in an expeditious way, but for no good reason deliberately chooses to refrain from serving a claim will rarely be able to obtain renewal of the claim. The expiry of the limitation period is an important circumstance when considering an application to renew a claim under r 24(2). That is because a plaintiff who starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right: The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [26]-[27], [53]-[54]; Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy [2010] QCA 270 at [35]-[37]; McIntosh v Maitland [2016] QSC 203 (Jackson J) at [28]-[37]; : King v Gunthorpe [2018] QSC 1 (Burns J) at [67]-[74], [88]-[91].
Factors that inform the exercise of discretion
Where the limitation period has expired, the relevant principles when considering whether or not to renew the claim are no different from those which are relevant to an application to extend the limitation period or for leave to proceed when no step has been taken in the action for 12 months and the limitation period has expired: Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513, [28] (Williams J, Davies JA agreeing).
It is for the applicant to establish some good reason why the case should be excepted from the general rule that the court will not exercise its discretion in favour of renewal: Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513, [29] (Williams J, Davies JA agreeing).
In Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513 Pincus J (Davies JA agreeing) applied the following test to the exercise of discretion under r 24 (at [4], [6]) taken from the decision of Stephen J in Van Leer Australia Pty Ltd v. Palace Shipping KK (1981) 180 CLR 337:
“(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
(2) The discretion may be exercised although the statutory limitation period has expired.
(3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
(4) There is a wide and unfettered discretion and there is "no better reason for granting relief than to see that justice is done.”
Prejudice to the person to be served as the result of the delay is a factor relevant to the determination of whether there is “good reason” to renew process: Gillies v Dibbetts [2001] 1 Qd R 596, [23] (Wilson J, McPherson JA and Thomas JA agreeing). It is for the applicant seeking the renewal to satisfy the court that such an order would not result in significant prejudice to the defendant: Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513, [31] (Williams J, Davies JA agreeing).
Good reason
In determining whether an applicant for renewal of a claim has established a good reason for renewing a claim, the court should consider the obligations of parties and the court provided under r 5. In this context, an example of compliance with the obligation to proceed in an expeditious way under r 5(3) includes serving a party according to the timetable implicit in r 24(1): IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QSC 12, [18], [19] and [24] (Helman J).
The fact that the plaintiff will be denied the ability to pursue an action does not alone constitute ‘good reason’ for renewing the claim: Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513, [11]-[13] (Williams J, Davies JA agreeing).
Denial of the ability to pursue an apparently worthwhile action alone could never constitute sufficient ‘good reason’, as that was a feature which would be present in every case where recourse was had to r 24, at least where the relevant limitation period had expired: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [47] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
An apparently worthwhile action was a factor favouring the positive exercise of the Court’s discretion where the action could proceed without prejudice to the defendant: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [48] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
If there is a reason for concern that the lapse of time is a real impediment to the fair presentation of a party’s case, that is a deficit in the case of an applicant for the grant of an indulgence in the form of an exception from the operation of the general rule that a court will not exercise its discretion in favour of renewal: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [51] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
As r 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiff, a party who deliberately chooses to refrain from serving a claim in defiance of r 5(3) would rarely be able to show good reason to warrant its renewal: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [53], [54] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
In determining whether an applicant has shown “good reason” to renew the claim against the respondent under r 24(2), it is relevant to consider whether the applicant has placed sufficient material before the court to enable the court ‘to form a preliminary view that the applicant’s claim against the respondent has substantial prospects of success: High Top Pty Ltd v Kay Sheila Lawrence trading as ‘Kay Lawrence Accountancy’ [2010] QCA 270, [11], [13] (McMurdo P).
If a plaintiff’s claim is so strong that a serious injustice would result were it not allowed to proceed, that would be a persuasive reason, in the absence of some significant prejudice to the defendant, to allow the claim to proceed by renewing it. Together with a satisfactory explanation for delay and absent competing circumstances, these matters would, in the terms of r 24(2), constitute “another good reason to renew the claim”: High Top Pty Ltd v Lawrence (t/as “Kay Lawrence Accountancy”) [2010] QCA 270, [11] (McMurdo P).
Interaction with Rule 5
It must be borne in mind that the discretion conferred by r 24(2) falls to be exercised in a context which included r 5, which states the philosophy of the UCPR: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [27] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
Delay
Unsatisfactorily explained delay is not necessarily fatal to an applicant obtaining a favourable exercise of discretion, although it is one factor to be weighed in the exercise of discretion: Kiymaz v Davies [2009] 1 Qd R 14, [27] (Mackenzie J).
Rule 24(2) must be read, and the discretion exercised, in a context which includes r 5. Thus, any conduct of proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion granted in r 24(2): High Top Pty Ltd v Kay Sheila Lawrence trading as ‘Kay Lawrence Accountancy’ [2010] QCA 270, [35] (White JA, Chesterman JA agreeing).
Plaintiffs are plainly not entitled to unilaterally arrogate to themselves the benefit of a stay of proceedings in the Supreme Court in defiance of r 5(3) by deciding not to serve a claim: IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [57] (Court of Appeal, Keane JA, McMurdo P and Cullinane J agreeing).
Notice to defendant
Many applications to renew process are made because the plaintiff has been unable to serve the defendant, and so many orders renewing process are made ex parte. A person affected by such an order made ex parte might apply to have it set aside and thus be afforded an opportunity to ventilate issues of prejudice. However, where the application for renewal is made after ineffective service, it should ordinarily be made on notice to the person who would be affected by an order for renewal: Gillies v Dibbetts [2001] 1 Qd R 596, [26] (Court of Appeal, Wilson J, McPherson JA and Thomas JA agreeing).
Interaction with rule 7 of the UCPR
Although r 24 of the UCPR refers to renewal for “not more than 1 year at a time”, the court may renew it for a greater period in the exercise of its general power to extend a time set under r 7: Gillies v Dibbetts [2001] 1 Qd R 596, [21] (Court of Appeal, Wilson J, McPherson JA and Thomas JA agreeing).
Setting aside decisions to renew a claim
That there are three sources of the court’s power to set aside an order renewing a claim: -
(i) UCPR r 16(d), which provides that the Court may set aside an order extending the period for service of an originating process;
(ii) UCPR r 667(2)(a), which provides that the Court may set aside an order made in the absence of a party; and
(iii) the inherent jurisdiction of the Court: King v Gunthorpe [2018] QSC 1 (Burns J) at [68].
The hearing of an application to set aside the renewal of a claim is a hearing de novo at which further evidence is admissible. The application must be determined upon a consideration of the whole of the material: Babcock & Brown Pty Ltd v Arthur Anderson [2010] QSC 287, [55] (Wilson J).
[25] Application of pt 5 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[26] Content of application go to top
Whether an applicant, who has failed to specifically articulate in the originating process the relief which is ultimately sought, is precluded from obtaining that relief will depend upon the individual circumstances of the case. A pivotal consideration is fairness: Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd (No 2) [2018] QSC 133 (Henry J) at [21].
[27] Service of application go to top
A party is entitled to know well in advance, and under the rules, at least three clear days in advance, what material is going to be relied upon for the purpose of an application and for what purpose, to enable the party to have a proper time to consider the matter and resolve the course they wish to adopt: EJR v RFHR [2002] QCA 435, p.5 (McPherson JA, Cullinane J and Holmes J agreeing).
For the purpose of r 27(2)(c), the phrase “another time is provided for under these rules”, includes an order by the court pursuant to r 7 that a different time apply: Australian Securities and Investments Commission v Neolido Holdings Pty Ltd [2006] QCA 266, [50] (Keane JA, Williams and JA and Holmes JA agreeing).
The provisions of the Land Title Act 1994 (Qld) do not authorise service of an originating application to remove a caveat on the address for service specified in a caveat. However, even if service has not been formally effected, the court may exercise its discretion to order the removal of a caveat: Suncorp Metway Ltd v Siulangapo Inc [2017] QSC 16 (Brown J) at [14], [21].
[28] Service of affidavit in support of application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[29] Notice of address for service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[30] Consent adjournment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[31] Applications in a proceeding go to top
Proceeding with the hearing of an application in the absence of the respondent and where the respondent is not given notice of an application at least two business days before the day set for hearing as prescribed under r 31(5) may constitute a denial of natural justice. This is particularly so where there is no indication of any need to determine the application urgently and without the presence of the respondent: La Spina v Macdonnells Law [2014] QCA 44, [20] (Muir JA, Holmes JA and Mullins J agreeing).
An order of the Court abridging time for the hearing of an application for the purpose of r 31(5) can be interpreted as an abridgment that applies to both the application and the supporting affidavit material: Labaj v Lollo Plumbing Pty Ltd [2004] QCA 96, p.5 (Phillipides J, McMurdo P and Davies JA agreeing).
The requirement in r 31(3) that a party name in an application any party whose interests may be affected by the granting of the relief sought, may be met if there is evidence that any party whose interests might be affected is given sufficient notice of the application: Boral Bricks v Davey [2011] 2 Qd R 301; [2010] QSC 131, [21] (Douglas J).
[32] Oral applications go to top
Rule 32 permits an oral application to be made for an injunction in circumstances of great urgency: Embrey v Smart [2014] QCA 75, [23] (Applegarth J, Muir JA and Morrison JA agreeing).
A condition, for the purpose of r 32(2), may include the imposition of costs: [2002] 23 Qld Lawyer Reps 91 (Wall QC DCJ).
Division 1--Central registry
[33] Central registry go to top
The Supreme Court has jurisdiction throughout Queensland and any proceeding in which it has jurisdiction may be started in any central registry (i.e. in Brisbane, Rockhampton, Townsville or Cairns) in accordance with r 33: Lohe v Tait [2002] QSC 399, [11] (Wilson J).
Division 2--Starting proceeding other than in central registry
[34] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3--Area of Magistrates Courts districts
[36] Application of div 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[37] Extended area of Magistrates Courts districts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4--Objection to, and change of, venue
[38] Objection to venue go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[39] Change of venue by court order go to top
Whether a change of venue is appropriate will turn on issues of convenience, such as the most favourable location for the parties’ representatives and the likely witnesses: Anderson v Kenny [2002] QSC 99, (Cullinane J), in respect of the now repealed r 45 of the UCPR.
[40] Change of venue by agreement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[41] Consequences of transfer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 5--Applications heard at a different location
[50] Applications heard at a different location go to top
Bringing an application under r 50 may be justified on the grounds that it will save the parties costs: RHG Mortgage Co Ltd Formerly RAMS Mortgage Co Ltd v Hannah [2011] QDC 144, p.1-3 (Robin QC DCJ).
[51] Definitions for pt 7 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[52] Application of pt 7 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[53] Starting proceedings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[54] Special federal matters go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[55] Service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[56] Directions go to top
For the purpose of r 56 it is not sufficient to ask for an order that the Court give directions without articulating the specific directions that are sought: Bouhafs, Registrar of Aboriginal Corporations v Nurapai Torres Strait Islanders Corp (unreported, 23 December 1999), (Fryberg J).
[57] Transfer of proceedings go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[58] Transfer on Attorney-General`s application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[59] Transfer to court if no proceeding pending go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.