The tortuous path to a guillotine order

Day v Woolworths Limited & Ors [2018] QSC 266

The matter returned to court because the plaintiff refused to elect one of the doctors from the various specialities and an occupational therapist, the subject of an order a year ago by Douglas J on 27 February 2017 under the Personal Injuries Proceedings Act 2002.

In the interim, the plaintiff appealed the order to the Court of Appeal (dismissed) and sought leave to appeal to the High Court (dismissed). The plaintiff further asserted that there had been violations of the International Covenant on Civil and Political Rights and the proceedings before the court ought to be stayed until that complaint had been determined by the United Nations.

The plaintiff also made various allegations against counsel and solicitors for the defendants.

The defendants sought the plaintiff’s claim to be dismissed. The plaintiff contended that the order of Douglas J did not require her to do anything and if she continued not to elect which of the various doctors and therapist to be examined by that her claim would remain stayed, which she was content with.

Davis J made short work of the submission that the United Nations had any jurisdiction over domestic courts in Australia and noted that in all respects the plaintiff had exhausted her appeals.

Davis J after referring to transcripts within the proceeding was satisfied that the plaintiff had no intention of making an election in terms of Douglas J’s order. His Honour noted that while this was not in breach of the order by Douglas J and hence there was no “clear pathway under the Uniform Civil Procedure Rules (UCPR)” to dismiss the proceedings.

However, his Honour referred to rule 5 of the UCPR and found that the plaintiff was clearly in breach of the implied undertaking because it was within her “control and power” to make the nominations from the panel provided for examinations. Davis J went further to find that it was an abuse of process, despite the proceeding being stayed. His Honour considered whether the proceedings should be permanently stayed, or a guillotine order made. The defendants opposed a guillotine order because the plaintiff intended to further frustrate the process and the plaintiff, may not attend upon the examinations.

His Honour considered the defendants’ objections to be valid, however, noted it was an extreme step to stay the proceedings permanently, effectively bring the proceedings to an end.

Accordingly, his Honour made a guillotine order with the blade of non-compliance effectively staying the proceeding permanently:

If the plaintiff does not advise the solicitors for the defendants, in writing, of the selection of one of the persons from each of the groups specified in paragraph 2 of the order of Douglas J of 27 November 2017, by 4 pm on 21 November 2018, the claim is permanently stayed.

Otherwise, Davis J dismissed the various complaints by the plaintiff against the defendants barristers and lawyers.

David Cormack – Brisbane Barrister & Mediator

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