Beattie v Coles - [2014] QDC 131

DISTRICT COURT OF QUEENSLAND

CITATION:

Beattie v Coles [2014] QDC 131

PARTIES:

PETER JOHN BEATTIE
(plaintiff)

v

STEVEN COLES
(defendant)

FILE NO/S:

D171/08

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

27 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2013

JUDGE:

McGill SC DCJ

ORDER:

Proceeding dismissed for want of prosecution, with costs. Plaintiff’s application dismissed with costs.

CATCHWORDS:

PRACTICE – Want of Prosecution – whether justification for delay – whether prejudice to defendant from delay – prospects of success – proceeding dismissed.

Civil Proceedings Act 2011 s 22.

Anthony v Rockett [1999] QCA 434 – cited.
Cooper v Hopgood & Ganim [1999] 2 Qd R 113 – applied.
Ghosh & Anor v NBN Limited & Ors [2014] QCA 53 – cited.
Page v The Central Queensland University [2006] QCA 478 – cited.
Quinlan v Rothwell [2002] 1 Qd R 647 – applied.
Sorrenson v McNamara [2003] QCA 149 – cited.
Tyler v Custom Credit Corporation Ltd [2000] QCA 178 – applied.

COUNSEL:

A P J Collins for the plaintiff

D S Hunter (solicitor) for the defendant

SOLICITORS:

Bell Legal Group for the plaintiff

Lewis & McNamara Solicitors for the defendant

In this matter there are cross-applications, by the defendant for the plaintiff’s claim to be dismissed for want of prosecution, and by the plaintiff, for leave to proceed under r 389. The plaintiff filed a claim and statement of claim in the District Court at Maroochydore on 9 July 2008 seeking damages for defamation. On 15 September 2008 an order by consent was made transferring the proceeding to the District Court at Hervey Bay. The action was pursued with a deal of activity until late in 2010, including various amendments to the pleadings on each side, but no step was taken by a party for upwards of two years, until the defendant’s application to dismiss for want of prosecution which was filed on 9 July 2013. The plaintiff’s application was filed in response. Both applications came before me for hearing.

Background

This proceeding, like a number of other recent defamation actions in this court,[1] arose out of the parties’ involvement with a Body Corporate for an apartment building. The defendant and his wife own a unit in a building at Hervey Bay.[2] The plaintiff is and was a director of a family company which holds a caretaking agreement with the Body Corporate for that building.[3] It appears that the work or most of the work associated with the caretaking was done by the plaintiff personally. In addition the plaintiff and his wife own three units in the building, which are part of a rental pool.[4] The plaintiff pleaded that he is also associated with other bodies corporate in the area.
[1]See for example Anthony v Rockett [1999] QCA 434, Sorrenson v McNamara [2003] QCA 149, Nicetin v Price [2003] QCA 332, Jamieson v Beattie [2006] QCA 395, all on appeal from the District Court.
[2]Affidavit of Coles sworn 9 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beattie v Coles

Details

AGLC: Beattie v Coles [2014] QDC 131
Case: [2014] QDC 131
Decision Date: 27 March 2014

CaseChat Overview and Summary

In the case of Beattie v Coles, the parties were engaged in a legal dispute that was brought before the court. The plaintiff, Beattie, alleged claims against the defendant, Coles, and the matter was proceeding in the relevant court. The core of the dispute centred on the plaintiff's failure to prosecute the matter with due diligence, leading to significant delays. The defendant sought to have the proceedings dismissed on the grounds of want of prosecution, arguing that the plaintiff had not acted with reasonable expedition and had prejudiced the defendant through the delay.

The legal issues that the court was required to decide included whether the plaintiff had a justifiable reason for the delay in prosecuting the matter, whether the defendant had suffered any prejudice due to the delay, and what the prospects of success were if the matter were to proceed. Additionally, the court needed to consider the appropriate remedy if the proceedings were to be dismissed.

In its reasoning, the court found that the plaintiff had not demonstrated a justifiable reason for the delay and that the defendant had indeed been prejudiced by the delay. The court concluded that the prospects of success for the plaintiff were low. Consequently, the court decided to dismiss the proceeding for want of prosecution. The court also dismissed the plaintiff's application with costs awarded to the defendant.

Orders

Orders of the court

Proceeding dismissed for want of prosecution, with costs. Plaintiff’s application dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Beattie v Coles [2014] QDC 131
PARTIES:	PETER JOHN BEATTIE (plaintiff) v STEVEN COLES (defendant)
FILE NO/S:	D171/08
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	27 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2013
JUDGE:	McGill SC DCJ
ORDER:	Proceeding dismissed for want of prosecution, with costs. Plaintiff’s application dismissed with costs.
CATCHWORDS:	PRACTICE – Want of Prosecution – whether justification for delay – whether prejudice to defendant from delay – prospects of success – proceeding dismissed. Civil Proceedings Act 2011 s 22. Anthony v Rockett [1999] QCA 434 – cited. Cooper v Hopgood & Ganim [1999] 2 Qd R 113 – applied. Ghosh & Anor v NBN Limited & Ors [2014] QCA 53 – cited. Page v The Central Queensland University [2006] QCA 478 – cited. Quinlan v Rothwell [2002] 1 Qd R 647 – applied. Sorrenson v McNamara [2003] QCA 149 – cited. Tyler v Custom Credit Corporation Ltd [2000] QCA 178 – applied.
COUNSEL:	A P J Collins for the plaintiff D S Hunter (solicitor) for the defendant
SOLICITORS:	Bell Legal Group for the plaintiff Lewis & McNamara Solicitors for the defendant