Bubniuk v State of New South Wales [2011] FMCA 40 (31 January 2011)

Federal Magistrates Court of Australia

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Bubniuk v State of New South Wales [2011] FMCA 40 (31 January 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUBNIUK v STATE OF NEW SOUTH WALES

[2011] FMCA 40

PRACTICE AND PROCEDURE – Whether respondent to the motion should pay costs in respect of application to strike out the statement of claim.

Federal Magistrates Court Rules 2001, Reg 21.02 Federal Court Rules, Rule 16 of Order 11

Applicant:

LESHIA BUBNIUK

Respondent:

STATE OF NEW SOUTH WALES

File Number:

SYG 2236 of 2010

Judgment of:

Emmett FM

Hearing date:

31 January 2011

Date of Last Submission:

31 January 2011

Delivered at:

Sydney

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Gibian

Solicitors for the Applicant:

Mr N Keats (W. G. McNally Jones Staff)

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Ms A Elliot (Holding Redlich)

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2236 of 2010

LESHIA BUBNIUK

Applicant

And

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

1. The respondent, being the State of New South Wales, filed an Application in a Case on 14 January 2011, seeking inter alia that the Statement of Claim filed by the applicant on 23 November 2010 be struck out pursuant to Rule 16 of Order 11 of the Federal Court Rules on the grounds that the Statement of Claim has a tendency to cause prejudice, embarrassment, or delay in the proceeding; or, in the alternative, discloses no cause of action. In support of that application, the respondent read the affidavit of Anna Magdalena Elliott, sworn 24 December 2010, which annexed various correspondence between the parties.
2. On 9 November 2010, a directions hearing was held and the following orders were made:
   • THE COURT ORDERS THAT:
   • 1. The Applicant file and serve a fully particularised Statement of Claim on or before 23 November 2010.
   • 2. The Respondent file and serve any request for further of the Applicant’s Statement of Claim by 7 December 2010.
   • 3. The Applicant file and serve any reply to the Respondent’s request for further particulars of the Applicant’s Statement of Claim by 24 December 2010.
   • 4. The Respondent file and serve a Response and Defence to the Statement of claim by 28 January 2011.
   • 5. The Applicant file and serve any Reply by 21 February 2011.
   • 6. This matter is listed for Directions on 28 February 2011 at 10am.
   • NOTE A: The Respondent’s solicitor agreed that the name of the Respondent is correct and agreed that the Respondent was the Applicant’s relevant employer.
   • NOTE B: Parties to prepare an agreed statement of issues, both fact and law, to be handed up at the next Directions hearing if the parties wish to proceed to a Court annexed mediation.
3. Pursuant to those orders, the applicant filed a Statement of Claim on 23 November 2010.
4. By letter dated 7 December 2010, the respondent’s solicitors wrote to the applicant’s solicitors identifying difficulties that the respondent had with the Statement of Claim and concluding with a request that the applicant re-plead its case by 10 December 2010. The respondent received no immediate response to that letter.
5. On 15 December 2010, the respondent’s solicitors wrote again to the applicant’s solicitors, referring to its letter of 7 December and again stating that the respondent considered that the Statement of Claim filed 23 November 2010, is defective and ought to be re-pleaded. The letter sought confirmation by noon on Thursday, 16 December 2010 as to whether the applicant intended to re-plead. The letter also informed the applicant that the respondent reserved its right to apply for the claim, as presently pleaded, to be struck out.
6. On 16 December 2010, the applicant’s solicitors responded to both letters of the respondent’s solicitors, dated 7 and 15 December. The applicant’s solicitors’ letter stated that the applicant did not accept that Statement of Claim was deficient. The letter stated that the concerns expressed by the respondent’s solicitors in the letter, dated 7 December 2010, should be addressed by a Request for Further and Better Particulars. The applicant’s solicitors’ letter made clear that they did not regard the letter of 7 December 2010 as a request for particulars.
7. In those circumstances, in my view, the applicant could have been under no illusion other than that the respondent required the Statement of Claim to be re-pleaded because it was defective for the reasons stated in the respondent’s solicitors’ letters of 7 December and 15 December 2010.
8. Thereafter, on 27 January 2011, the applicant’s solicitors wrote to the respondent’s solicitors in relation to the respondent’s letters dated 7 December and 15 December and the respondent’s application to strike out filed on 14 January 2011. In that letter, the applicant’s solicitors purported to accept that the respondent’s letter of 7 December 2010 was in fact a request for particulars and purported to answer that request. Plainly, such answer is well outside the timetable set by the court on 9 November 2011, which required any response to a request for particulars to be provided by 24 December 2010.
9. On 28 January 2011, the applicant’s solicitor wrote again to the respondent’s solicitors stating that, in light of their letter of 27 January, they requested that the Application in a Case to strike out the Statement of Claim be withdrawn. I note that 28 January was last Friday. Today is Monday.
10. When the parties came before me this morning, the parties had agreed that an amended Statement of Claim would be filed by the applicant. A timetable has been set this morning, by agreement, for the filing and serving of an amended Statement of Claim, a Defence and Reply, and the matter has been otherwise stood over to 15 March for further directions.
11. On the material before me, it is clear that the preparation for the respondent’s Application in a Case had well and truly taken place by last Friday.
12. The respondent’s position has been consistent in their allegation that the applicant’s Statement of Claim is defective. The fact that the applicant has agreed to re-plead, as they were invited to do by the respondent on 7 December 2010, in my view, makes the application for costs by the respondent this morning appropriate.
13. Accordingly, the applicant should pay the costs of the respondent in respect of the respondent’s Application in a Case to strike out the applicant’s Statement of Claim, filed on 23 November 2010, in the scheduled amount of $1,465.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 3 February 2011