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Stariha v K&T Earthmoving Pty Ltd[2023] QDC 133

Stariha v K&T Earthmoving Pty Ltd[2023] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Stariha v K&T Earthmoving Pty Ltd [2023] QDC 133

PARTIES:

JOHN STARIHA

(appellant)

v

K&T EARTHMOVING PTY LTD

(ACN 144 074 546)

(respondent)

FILE NO:

2349/22

DIVISION:

District Court of Queensland

PROCEEDING:

Civil Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

23 June 2023

DELIVERED AT:

Maryborough

HEARING DATE:

5 May 2023

JUDGE:

Dearden DCJ

ORDER:

  1. The appeal be allowed.
  2. The orders of the Magistrates Court made on 26 August 2022 be set aside and in their place it be ordered that:
    1. The plaintiff’s application filed 9 August 2022 be dismissed.
    2. The proceeding be dismissed.

CATCHWORDS:

MAGISTRATES – APPEAL – GROUNDS OF APPEAL – UCPR r. 389 – whether the learned magistrate erred in finding that the plaintiff did not require leave to proceed pursuant to UCPR r. 389 – whether an order by the learned magistrate constituted a step in the proceeding – whether the delivery of lists of documents constituted a step in the proceeding

CIVIL PROCEEDINGS – PROCEDURE – LACK OF PROGRESS – DISMISSAL OF PROCEEDINGS – where no effectual step had been taken for more than 2 years from the time the last step was taken – substantial delay in proceedings – delay wholly attributable to the respondent

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

City Corp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420

Page v Central Queensland University [2006] QCA 478

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Ure v Robertson [2017] 2 Qd R 556

COUNSEL:

J R Moxon for the appellant

R J Bull for the respondent

SOLICITORS:

Shand Taylor Lawyers for the appellant

McInnes Wilson Lawyers for the respondent

Introduction

  1. [1]
    The appellant (the defendant in the Magistrates Court proceedings) appeals from the decision of the learned magistrate on 26 August 2022 ordering:-
  1. Pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the defendant’s signature on the request for trial date be dispensed with.
  2. The proceeding be set down for trial at the earliest date convenient to the parties.
  3. The defendant’s application filed 18 August 2022 be dismissed.
  4. No order as to costs.
  1. [2]
    The defendant’s application filed 18 August, 2022 above was an application pursuant to UCPR r. 280 seeking the dismissal of the proceedings for want of prosecution, or alternatively, in the exercise of the Magistrates Court’s implied power to dismiss the proceeding as an abuse of process.
  2. [3]
    Grounds of appeal
  1. The learned magistrate erred in dispensing with the defendant’s signature on the request for trial date (pursuant to r. 469 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)), because his Honour should have found that the plaintiff required leave to proceed pursuant to r. 389 in order to apply for that relief, and the plaintiff had not sought leave to proceed.
  1. The learned magistrate erred in finding that the plaintiff did not require leave to proceed pursuant to r. 389 UCPR because:
    1. No effectual step was taken by the plaintiff after 15 October 2008, in that:
      1. (A)
        none of the second list of documents (purportedly delivered on 1 September 2020), third list of documents (purportedly delivered on 31 August 2021) or fourth list of documents (purportedly delivered on 11 May 2022) were a ‘step’ within the meaning of r. 389 and insofar as his Honour purported to hold that they were, his Honour erred in law; and
      2. (B)
        neither the plaintiff’s application for leave to amend the claim filed on 11 January 2022, nor the order of Magistrate Crawford made on 4 February 2022 were a ‘step’ within the meaning of r. 389, and his Honour erred in law in so finding;
    2. his Honour erred in distinguishing Ure v Robertson [2017] 2 Qd R 556 on the basis that Magistrate Crawford made an order on 4 February 2022 granting the plaintiff leave to amend the claim, because her Honour’s order was not a step within the meaning of r. 389.
  2. The learned magistrate erred in not determining the defendant’s application for dismissal of the proceeding under r. 280 UCPR, because his Honour should have found that the plaintiff had not taken a step required by the UCPR (such step being applying to the court for leave to proceed under r. 389 UCPR).
  3. In the alternative to ground 3, the learned magistrate erred in the exercise of his discretion not to dismiss the proceeding as an abuse of process because:
    1. his Honour did not give sufficient reasons for his decision;
    2. his Honour failed to take into account material considerations, namely:
      1. (A)
        the plaintiff’s conduct in engaging in staggered disclosure;
      2. (B)
        the passage of time since the events the subject of the proceeding; and
      3. (C)
        the prejudice occasioned to the defendant by reason of the passage of time
    1. In the alternative to ground 4 (ii), his Honour’s decision not to dismiss the proceeding as an abuse of process was so unreasonable or plainly unjust that it is to be inferred that he did not properly exercise his discretion, in that:
      1. (A)
        it should be inferred that the plaintiff engaged in staggered disclosure for the purposes of maintaining the proceeding on foot and avoiding the operation of r. 389 UCPR;
      2. (B)
        the proceeding concerns the content of conversations which occurred eight years ago; and
      3. (C)
        the defendant is prejudiced by the passage of time since the events the subject of the proceeding.

Background

  1. [4]
    The substantive proceedings involve the respondent (the plaintiff in the proceedings below) suing upon a loan agreement arising out of conversations occurring between 11 and 13 May 2014.[1]  The proceedings commenced in the Brisbane Magistrates Court on 22 December 2017.
  2. [5]
    The appellant submits that the respondent avoided the operation of UCPR r. 389 (which requires a party wanting to proceed, giving a month’s notice to every other party of the party’s intention to proceed if no step has been taken in a proceeding for one year,[2] or in the alternative, if no step has been taken in a proceeding for two years since the last step was taken, a new step may not be taken without the order of the court[3]) by delivering successive lists of irrelevant documents immediately before it would otherwise have been required to give notice under UCPR r. 389. The respondent then subsequently applied to dispense with the appellant’s signature on the request for trial date pursuant to UCPR r. 469.  The appellant’s case in respect of that application is that it should not be required to sign the request for trial because the respondent required leave to proceed pursuant to UCPR r. 389.[4]
  3. [6]
    The appellant submits that the learned magistrate in the proceedings below appeared to accept that, but for the order of Magistrate Crawford on 4 February 2022 granting leave to amend the claim, the application seeking leave to amend was itself ineffectual and therefore the respondent would have required leave to proceed under UCPR r. 389, in accordance with Ure v Robertson [2017] 2 Qd R 556. However, the learned magistrate concluded that the order made on 4 February 2022 regularised the proceedings.  The appellant submits that the learned magistrate erred in distinguishing Ure v Robertson on that basis, as well as in failing to conclude that leave to proceed was required, and those two issues are the subject of Grounds 1 and 2 of the grounds of appeal.[5]
  4. [7]
    In default of the respondent applying for leave to proceed, the appellant cross-applied for dismissal of the proceeding for want of prosecution under UCPR r. 280, or alternatively, in the exercise of the Magistrates Court’s implied power to dismiss a proceeding as an abuse of process, arguing that the learned magistrate should have found that the respondent required leave to proceed, and accordingly, should then have proceeded to consider the appellant’s application for dismissal pursuant to UCPR r. 280.  The appellant submits that the failure of the learned magistrate to follow these steps constitutes Ground 3 of the notice of appeal, and if successful, the appellant requests that this court, on appeal, re-exercise the discretion pursuant to UCPR r. 280.[6]
  5. [8]
    In respect of the appellant’s alternative submission that the proceeding should be dismissed as an abuse of process, it is submitted that the learned magistrate erred in the exercise of his discretion, by giving insufficient reasons and failing to take relevant matters into account (Grounds 4(i) and (ii)), or in the alternative, that the result of the exercise of the learned magistrate’s discretion was so unreasonable or plainly unjust that error ought to be inferred (Ground 4(iii)).[7]
  6. [9]
    The appellant submits, in conclusion, that instead of dispensing with the appellant’s signature on the request for trial date, the learned magistrate should have dismissed the proceedings, with costs.[8]
  7. [10]
    The respondent, on the contrary, submits that leave to proceed was not required pursuant to UCPR r. 389 because the order made by Magistrate Crawford on 4 February 2022 giving the respondent leave to amend its Claim and Statement of Claim was a “step” in the proceeding.[9]  The respondent also submits that it was open to the learned magistrate below to find that the lists of documents were effectual “steps” in the proceedings.[10]
  8. [11]
    In respect of Ground 3, relating to the operations of UCPR r. 280, the respondent submits that there is no basis on which it is appropriate to dismiss the proceeding, which is not a complex matter, and is not so delayed or otherwise not in a position to proceed, when assessed in respect of the criteria identified in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, [2].[11]
  9. [12]
    In respect of Ground 4 – abuse of process, the respondent submits that the reasons provided by the learned magistrate were sufficient[12] and that the learned magistrate did not fall into error in failing to take relevant matters into account, and/or arrive at an unreasonable or unjust result.[13]

Grounds 1 and 2 – leave to proceed under UCPR r. 389

  1. [13]
    UCPR r. 389 provides:-

“389 Continuation of proceeding after delay

  1. If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
  1. If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
  1. For this rule, an application in which no order has been made is not taken to be a step.”
  1. [14]
    The learned magistrate concluded that leave to proceed was not required before the respondent could apply to dispense with the applicant’s signature, because the order made on 4 February 2022 by Magistrate Crawford, giving the respondent leave to amend its Claim and Statement of Claim “assisted with the advancement of the proceeding”.[14]  However, the learned magistrate seemed to accept that apart from that order of 4 February 2022, the respondent had not taken an effectual step after October 2018.[15]
  2. [15]
    The learned magistrate’s reasoning, it is submitted by the appellant, rests upon two flawed premises namely:-
    1. that an order of the court will necessarily amount to a step; and
    2. assuming that it did, it did not matter that more than two years had elapsed between the order and the previous effectual step because the decision in Ure v Robertson [2017] 2 Qd R 556 does not apply to certain kinds of “steps”, namely court orders.[16]
  3. [16]
    As McPherson SPJ identified in City Corp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, 594, “it may … be accepted that to constitute a ‘proceeding’ the act or activity must have the characteristic of carrying the cause or action forward”, although “it need not be a step taken or act done in a court or its registry”.
  4. [17]
    In Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202, [3] McMurdo P, agreeing with Peter Lyons J, stated:-

“Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case.  It is clear from the authorities discussed by Peter Lyons J [46]-[47] that, to be a step under r. 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion.”

  1. [18]
    In Artahs, the court issued a case flow intervention notice and gave notice that it would require a draft order, including directions for the taking of future steps in the matter,[17] and the parties agreed on the orders including a direction that further disclosure occur by a certain date. By majority, the Court of Appeal held that the order did not constitute a “step” within the meaning of UCPR r. 389.  McMurdo P, agreeing with Peter Lyons J, stated[18]

“… I am unable to accept that the resulting order, initiated by a case flow management intervention notice and then not met, can amount to a step in the proceeding under r. 389.  That is because in this case the order itself did not progress the action towards finalisation, even though subsequent compliance with the order would have progressed the action.”

  1. [19]
    Fraser JA stated:[19]

“As to what constitutes a ‘step’, the provision in r. 389(3) that an application in which no order has been made is not taken to be a step does not imply that every application upon which an order is made, or every such order itself, is a step.”

  1. [20]
    The appellant’s submission is that the order made by Magistrate Crawford on 4 February 2022 did not progress the proceeding. The appellant argues that the learned magistrate below therefore erred in purporting to distinguish Ure v Robertson [2017] 2 Qd R 556.
  2. [21]
    In Ure, a party delivered a list of documents more than two years after the previous step had been taken, and without seeking leave to proceed.  It was argued that the failure to comply with UCPR r. 389(2) was a mere irregularity, and because the step was not a nullity it amounted to the “last step” within the meaning of UCPR r. 389.  Bond J held that:-

“The proper construction of r. 389(2) is that the “last step” contemplated must be the last effectual step, namely a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since declared to be effectual under the rules.  Taking that approach to the clause accords with the evident intention of r. 389 and avoids the appellant’s construction, which would deny utility to the rule.”

  1. [22]
    The application by the respondent for leave to amend, resulting in the order granting leave by Magistrate Crawford, was made on 4 February 2022, being more than two years after the previous step in the proceeding, which was the UCPR r. 444 letter in October 2018.[20]
  2. [23]
    It is submitted, and I accept, that neither the application for leave to amend the pleadings, nor the order made on 4 February 2022, was an effectual step for the purposes of UCPR r. 389.
  3. [24]
    It is submitted, and I accept, that the respondent, in respect of the application for leave to amend which was dealt with on 4 February 2022, did not seek leave pursuant to UCPR r. 389 and consequently, even though no objection was made by the appellant’s solicitors to that application, it was not a “step”. Accordingly, I consider that leave to proceed pursuant to UCPR r. 389 was required before the respondent could bring its application to dispense with the appellant’s signature.  The effect of UCPR r. 389(2) is not avoided just because the appellant did not object to the application dealt with on 4 February 2022.[21] The application dealt with on 4 February 2022, in my view, sought a minor amendment of the pleadings, did not advance the proceedings towards a conclusion, and in any event, leave was not sought to proceed, as required by UCPR r. 389.
  4. [25]
    I conclude then that no effectual step was taken between 15 October 2018, when the respondent sent a UCPR r. 444 letter, and the hearing before the learned magistrate below on 26 August 2022.
  5. [26]
    The appellant has helpfully provided a schedule setting out a chronology of purported steps, drawn from the affidavit of Jessica Patrick[22] filed in the substantive proceedings below, paragraphs 12-24 and Exhibit JAP-2.

Date

Step

Comment

16/7/2020

Plaintiff gave notice of intention to take a step, pursuant to r 389(1)

21 months after r 444 letter on 15 October 2018

1/9/2020

Plaintiff delivered a ‘second list of documents’

The list consists of correspondent between the parties’ solicitors, title searches and company searched (earlier versions of which had already been disclosed in the first list of documents)

31/8/21

Plaintiff delivered a third list of documents

The list consists of one document - a letter dates 3 March 2017 from an accountant for the plaintiff’s director.

1/11/21

Plaintiff sent a letter enclosing an application to amend the claim and a request for consent order or registrar

 

12/1/22

Plaintiff served its application to leave to amend the claim and statement of claim

 

15/3/22

Plaintiff delivered an amended claim and statement of claim

 

11/4/22

Plaintiff delivered a fourth list of documents and the request for trial date

The fourth list consists of a single document – a latter dated 6 September 2021 from an accountant for the plaintiff’s director.

8/6/22

Defendant formally indicated it would not sign the RFTD because leave to proceed was required

 

5/8/22

Plaintiff responded to the defendant’s letter

 

  1. [27]
    The appellant submits that the last formal steps taken by the respondent before the application to dispense with the appellant’s signature were the filing of an application on 11 January 2022, and the delivery of a fourth list of documents on 11 April 2022.  It is submitted that these could only have been effectual steps if each of the second and third list of documents[23] were also effectual steps.  The appellant relies on the observations of McGill SC DCJ in Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420, [7] in respect of a further list of documents, that:-

“The rules relating to disclosure do not specifically contemplate the delivery of an amended list of documents, once one list of documents has already been provided, at least without a court order or direction to that effect.  In these circumstances, it is not beyond dispute that doing so does amount to a step for the purposes of r. 389.”

  1. [28]
    It is submitted that, accordingly, a supplementary or further list of documents can constitute a step, but does not necessarily do so, and that the issue is to be identified from an examination of the contents of the relevant lists as well as the timing of their deliveries.  The appellant submits that the list of documents were delivered to avoid the operation of UCPR r. 389 and not to progress the action.
  2. [29]
    The appellant submits that the second list, which consisted only of solicitors’ correspondence, company searches and title searches, was not directly relevant to any allegation in issue in the pleadings and therefore not subject to the duty of disclosure.  The appellant submits further that to the extent that the documents in the list proved anything, they went to formal matters which were not in issue.  Accordingly, it is submitted that the list did not advance the action, but could only have been provided to avoid the operation of UCPR r. 389.  With respect, that is an inescapable conclusion given the content of the documents on that list.
  3. [30]
    In respect of the third list of documents, the only document disclosed was an opinion by a Mr Simpkin, a non-party to the proceedings, purporting to offer advice about additional tax liabilities arising from the appellant’s alleged failure to comply with the terms of a loan agreement.  The document was dated 3 March 2017 (four and a half years prior to the delivery of the third list of documents) and despite request, no reason was provided as to why the letter was disclosed more than four and a half years after its creation.  That third list of documents was delivered just one day before the respondent would have had to give notice of intention to proceed pursuant to UCPR r. 389(1).  It is submitted (and I accept) that it is not a regular “step” in the proceeding.  The document itself is entirely irrelevant to any issue in dispute and the timing appears designed for no other purpose other than to purport to be a step prior to the expiry of the relevant time limit.
  4. [31]
    The respondent submits that the delivery of lists of documents on 1 September, 2020 and 31 August, 2021 amounted to effectual “steps”,[24] but, with respect, for the reasons set out above, I do not consider that either of those lists progressed the action in anyway. It is unnecessary to decide, in the light of my conclusions as to the nature of the supplementary lists of documents, and my conclusions in respect of the order of Magistrate Crawford of 4 February, 2022, whether the timing of the delivery of the subsequent lists was fortuitous or deliberate.
  5. [32]
    Having identified that the order of Magistrate Crawford on 4 February 2022 did not constitute a “step”, it follows that I conclude that no effectual step was taken in the proceedings after 15 October 2018. Accordingly, the learned magistrate below erred by failing to hold that the respondent required leave to proceed.  It follows that the learned magistrate below was in error in making an order that the appellant’s signature be dispensed with in respect of the request for trial.
  6. [33]
    In my view, the appellant has substantiated Grounds 1 and 2 on the notice of appeal.

Ground 3 – r 280

  1. [34]
    UCPR r. 280 relevantly provides:

“280 Default by plaintiff or applicant

  1. If—
  1. the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
  1. the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.”

  1. [35]
    Having concluded that the learned magistrate below erred in not finding that leave to proceed was required, it then follows that the learned magistrate should have considered whether the proceeding should be dismissed for want of prosecution, pursuant to UCPR r. 280.
  2. [36]
    The relevant factors are set out in Tyler v Custom Credit Corp Ltd [2000] QCA 178, [2], as follows:-

“When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (“UCPR”) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:

  1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  2. how long ago the litigation was commenced or causes of action were added;
  3. what prospects the plaintiff has of success in the action;
  4. whether or not there has been disobedience of Court orders or directions;
  5. whether or not the litigation has been characterised by periods of delay;
  6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  8. whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  9. how far the litigation has progressed;
  10. whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.  Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  11. whether there is a satisfactory explanation for the delay; and
  12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.” [Citations omitted].

  1. [37]
    The appellant submits that the respondent has delayed in commencing and prosecuting the action which relates to events occurring in 2014.  The proceedings were not commenced for more than three years after the funds were allegedly due under the loan agreement.  The matter failed to resolve at a settlement conference in August 2018.  The respondent then waited nearly two years to deliver a second list of documents, a further year to deliver another list of documents, another four months before filing an application to correct what was effectively a clerical error in pleadings, and then another four months before delivering a request for trial date.  The plaintiff then took a further two months to respond to the appellant’s correspondence indicating that it would not sign the request for trial date.
  2. [38]
    All of the delays, it is submitted, are wholly attributable to the respondent, and there is, it is submitted, an inherent prejudice in circumstances where the loan agreement arises from a conversation on 11 May 2014,[25] varied in a further conversation on 4 July 2014,[26] and also relies on a conversation alleged to have occurred on 13 May 2014.[27]
  3. [39]
    The appellant relies on the observations of Keane JA in Page v Central Queensland University [2006] QCA 478, [24] that:-

“While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial.  The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared.  Such a trial would not be fair for either party.”

  1. [40]
    The appellant also relies on the reasons articulated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551:-

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "(w)here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.” [Citations omitted].

  1. [41]
    In my view, the respondent has failed to adequately explain the substantial delays in progressing the proceedings.  Those purported steps which have occurred since August 2018 were entirely ineffectual and it is now more than nine years since the substantive interactions occurred on which the respondent bases its claim. A proceeding that depends almost entirely on oral conversations, in which the delays are, as I have found, entirely attributable to the respondent, should, in those circumstances, be terminated. There is no utility in returning this matter back to the Magistrates Court. The respondent has had a more than ample opportunity to progress its case, and the delay is clearly responsible for degrading the opportunity for a fair trial to an unacceptable level. This court should now exercise the discretion to dismiss the proceedings pursuant to UCPR r. 280. 

Orders

  1. [42]
    I make the following orders:
  1. The appeal be allowed.
  2. The orders of the Magistrates Court made on 26 August 2022 be set aside and in their place it be ordered that:
    1. The plaintiff’s application filed 9 August 2022 be dismissed.
    2. The proceeding be dismissed.

Costs

  1. [43]
    I will hear the parties on costs.

Footnotes

[1]  Amended Statement of Claim [3]-[8].

[2]UCPR r. 389(1).

[3]UCPR r. 389(2).

[4]  Exhibit 1 – submissions of the appellant [3].

[5]  Exhibit 1 – submissions of the appellant [4]-[5].

[6]  Exhibit 1 – submissions of the appellant [6]-[7].

[7]  Exhibit 1 – submissions of the appellant [7]-[8].

[8]  Exhibit 1 – submissions of the appellant [9].

[9]  Exhibit 2 – outline of submissions of the respondent [9]-[10].

[10]  Exhibit 2 – outline of submissions of the respondent [17]-[25].

[11]  Exhibit 2 – outline of submissions of the respondent [29]-[36].

[12]  Exhibit 2 – outline of submissions of the respondent [38]-[47].

[13]  Exhibit 2 – outline of submissions of the respondent [48]-[56].

[14]  Transcript 1-14, ll 34-35.

[15]  Transcript 1-6, l 15, 1-14, l 25.

[16]  Exhibit 1 – submission of the appellant [12].

[17] Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202, [18] per Peter Lyons J.

[18] Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202, [4].

[19] Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202, [8].

[20]  Affidavit of Jessica Patrick affirmed 9 August, 2022, [10]. 

[21]Ure v Robertson [2017] 2 Qd R 556, [43].

[22]  Affidavit of Jessica Patrick affirmed 9 August, 2022.

[23]  Delivered 1 September 2020 and 31 August 2021.

[24]  Exhibit 2 – outline of submissions of the respondent [26].

[25]  Amended Statement of Claim [3]-[4].

[26]  Amended Statement of Claim [12].

[27]  Amended Statement of Claim [6].

Close

Editorial Notes

  • Published Case Name:

    Stariha v K&T Earthmoving Pty Ltd

  • Shortened Case Name:

    Stariha v K&T Earthmoving Pty Ltd

  • MNC:

    [2023] QDC 133

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    23 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[2013] 2 Qd R 202; [2012] QCA 272
5 citations
Jump To
Cite 1 - [2013] 2 Qd R 202
Cite 2 - [2013] 2 Qd R 202
Cite 3 - [2013] 2 Qd R 202
Cite 4 - [2013] 2 Qd R 202
Cite 5 - [2013] 2 Qd R 202
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Citicorp Australia Limited v Metropolitan Public Abattoir Board[1992] 1 Qd R 592; [1991] QSCFC 59
2 citations
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Cite 1 - [1992] 1 Qd R 592
Cite 2 - [1992] 1 Qd R 592
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420
2 citations
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Cite 1 - [2003] QDC 420
Cite 2 - [2003] QDC 420
Page v Central Queensland University [2006] QCA 478
2 citations
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Cite 1 - [2006] QCA 478
Cite 2 - [2006] QCA 478
Tyler v Custom Credit Corp Ltd [2000] QCA 178
3 citations
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Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Cite 3 - [2000] QCA 178
Ure v Robertson [2017] 2 Qd R 556
6 citations
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Cite 1 - [2017] 2 Qd R 556
Cite 2 - [2017] 2 Qd R 556
Cite 3 - [2017] 2 Qd R 556
Cite 4 - [2017] 2 Qd R 556
Cite 5 - [2017] 2 Qd R 556
Cite 6 - [2017] 2 Qd R 556

Cases Citing

Case NameFull CitationFrequency
Stariha v K & T Earthmoving Pty Ltd (No 2) [2023] QDC 1501 citation
1

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