Bird v Ace Insurance Limited - [2011] QSC 262

SUPREME COURT OF QUEENSLAND

CITATION:

Bird v Ace Insurance Limited [2011] QSC 262

PARTIES:

RAYMOND NORMAN BIRD

(Respondent)

v

ACE INSURANCE LIMITED
ABN 23 001 642 020

(Applicant)

FILE NO:

S 503 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Rockhampton

DELIVERED ON:

31 August 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

19 August 2011

JUDGE:

McMeekin J

ORDERS:

1. The application is dismissed

2. The applicant to pay the respondent’s costs on the standard basis

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY –
COURTS – DISMISSAL OF PROCEEDINGS FOR WANT
OF PROSECUTION – PRINCIPLES APPLICABLE –

RELEVANT CONSIDERATIONS – where defendant in original suit is seeking leave to proceed with counter claim –where no step has been taken for over three years – whether it is in the interests of justice that the matter proceed

Uniform Civil Procedure Rules 1999 (Qld)

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

Cooper v Hopgood & Ganim [1999] 2 QdR 11

Hall v RH & CE McColl P/L [2007] QCA 182

Southern Cross Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233

Theiss Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209

Tricon Industries v Abel Lemon & Co Pty Ltd (No 2) [1998] 2 Qd R 551

Tyler v Custom Credit [2000] QCA 178

COUNSEL:

AM Arnold for the applicant

JB Sweeney for the respondent

SOLICITORS:

Spark Helmore for the applicant

South & Geldard Solicitors for the first respondent

McMeekin J: The defendant in the proceedings, Ace Insurance Limited (“Ace”), applies for leave to take a step in the proceeding pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”)despite there having been a delay of more than two years. The respondent plaintiff, Raymond Norman Bird (“Bird”), has effectively abandoned his claim against Ace. However, Ace is a counter-claiming plaintiff and is interested in maintaining its counter-claim.

No step has been taken in the proceedings since Ace’s delivery of its list of documents on 26 March 2008 – three and a half years ago.

Relevant Principles

Rule 389(2) provides:

“(2) 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.”

The reason for the rule is that “[u]nnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result”: Tyler v Custom Credit [2000] QCA 178 at [3] per Atkinson J.

On an application for leave to proceed, the applicant for leave must “show that there is good reason for excepting the particular proceedings from the general prohibition”.[1] If Bird is successful in resisting this application then that will bring an end to the litigation. The question here then is whether the interests of justice require this…

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.

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Details

Case: [2011] QSC 262
Decision Date: 31 August 2011

CaseChat Overview and Summary

The matter of Bird v Ace Insurance Limited involved a plaintiff, Bird, who had originally sued Ace Insurance Limited in the Federal Circuit Court of Australia. Bird was seeking damages for alleged breaches of contract by Ace Insurance. Ace Insurance, in turn, had filed a counterclaim against Bird, but had not pursued this counterclaim for over three years. The central issue before the court was whether it was in the interests of justice for Ace Insurance to proceed with its counterclaim, given the significant delay in pursuing it. The court had to consider the principles and relevant factors that govern the dismissal of proceedings for want of prosecution, especially in the context of a counterclaim that had been left inactive for an extended period.

The court examined the general principles governing the dismissal of proceedings for want of prosecution, which include the duty of a party to prosecute their case diligently and the overarching interest of justice. The court also considered the specific circumstances of the case, including the substantial delay in pursuing the counterclaim and the absence of any justification or explanation for this delay. The court weighed these factors against the need for a fair and efficient resolution of disputes and the potential prejudice to the opposing party if the proceedings were allowed to continue after such a significant lapse in time.

The court concluded that the delay in pursuing the counterclaim was substantial and unjustified, and that it was not in the interests of justice for the matter to proceed. The court found that the delay had caused significant prejudice to Bird, who had been left in uncertainty for an extended period. The court also noted that Ace Insurance had not provided any satisfactory explanation for the delay, further supporting the conclusion that the matter should not be allowed to proceed. Consequently, the court dismissed the application for leave to proceed with the counterclaim and ordered Ace Insurance to pay Bird's costs on the standard basis.

The final orders of the court were that the application for leave to proceed with the counterclaim was dismissed, and that Ace Insurance was to pay Bird's costs on the standard basis. This decision reinforces the importance of diligent prosecution of claims and the court's duty to ensure that proceedings are conducted in a fair and efficient manner, particularly where there has been a significant delay in pursuing a counterclaim.

Orders

Orders of the court

1. The application is dismissed

2. The applicant to pay the respondent’s costs on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bird v Ace Insurance Limited [2011] QSC 262
PARTIES:	RAYMOND NORMAN BIRD (Respondent) v ACE INSURANCE LIMITED ABN 23 001 642 020 (Applicant)
FILE NO:	S 503 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Rockhampton
DELIVERED ON:	31 August 2011
DELIVERED AT:	Rockhampton
HEARING DATE:	19 August 2011
JUDGE:	McMeekin J
ORDERS:	1. The application is dismissed 2. The applicant to pay the respondent’s costs on the standard basis
CATCHWORDS:	PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS – where defendant in original suit is seeking leave to proceed with counter claim –where no step has been taken for over three years – whether it is in the interests of justice that the matter proceed Uniform Civil Procedure Rules 1999 (Qld) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cooper v Hopgood & Ganim [1999] 2 QdR 11 Hall v RH & CE McColl P/L [2007] QCA 182 Southern Cross Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233 Theiss Pty Ltd v FFE Minerals Aust Pty Ltd [2007] QSC 209 Tricon Industries v Abel Lemon & Co Pty Ltd (No 2) [1998] 2 Qd R 551 Tyler v Custom Credit [2000] QCA 178
COUNSEL:	AM Arnold for the applicant JB Sweeney for the respondent
SOLICITORS:	Spark Helmore for the applicant South & Geldard Solicitors for the first respondent