Bendeich v Clout

[2003] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Bendeich v Clout [2003] QDC 305

PARTIES:

GRAHAM ROSS BENDEICH

Plaintiff

v

DAVID LEWIS CLOUT

Defendant

FILE NO/S:

Plaint 1744 of 1996

DIVISION:

PROCEEDING:

Application in proceeding

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2003

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs.

CATCHWORDS:

PRACTICE – Leave to proceed – 5 years delay in 7½ year old claim – responsibility for delay – prejudice to defendant – limitation period not yet run – leave refused.

Uniform Civil Procedure Rules r 389.

Birkett v James [1978] AC 297 – not followed.

Cooper v Hopgood & Ganim [1999] 2 Qd R 113 – applied.

Quinlan v Rothwell [2001] QCA 176 – applied.

Tyler v Custom Credit Corporation Ltd [2000] QCA 178 – applied.

COUNSEL:

M D Martin for the plaintiff

G I Thomson for the first third party

SOLICITORS:

Morgan Conroy for the plaintiff

Tucker Cowan for the defendant

Dibbs Baker Gosling for the first third party
Rinaudo & Co for the second, third and fourth third parties

1. This is an application by the plaintiff for leave to proceed pursuant to r 389 of the Uniform Civil Procedure Rules.  The action was commenced on 20 December 1995 when a writ was filed in the Supreme Court.  On 20 May 1996 a deputy registrar made a consent order that the action be remitted to the District Court at Brisbane.  The last step taken in the action was the filing and service on 7 August 1998 of an entry of appearance and defence on the part of the fourth third party.  The last step taken by the plaintiff was the delivery of a statement of claim on 6 March 1996.

1. The plaintiff alleged that his failure to prosecute the action thereafter was due to the failure of his then solicitors, Messrs Baker Johnson, to act on his instructions to proceed with it.  He conceded that there was a time in mid 1998 when he instructed the firm to take no further steps for the time being, but alleged that in November 1998 he instructed a particular solicitor who had the conduct of the proceedings to prosecute them for him, and that was confirmed by a letter of 24 February 1999 to his solicitors.[1]  On 15 March 1999 the plaintiff’s solicitors wrote to the defendant’s solicitors indicating that the matter was to be reactivated, and the plaintiff was informed of this under cover of a letter of 15 March 1999.  Apparently notice of intention to proceed was given on 14 May 1999 and shortly thereafter Baker Johnson were advised that new solicitors were acting for the defendant.  In March 2000 there were a number of meetings between the plaintiff and his solicitors about further prosecuting the proceedings.  On 24 January 2000 notice of intention to proceed was filed by Baker Johnson.  On 9 March 2000 that firm sent letters to the defendant and third parties enquiring whether the proceedings…