Boyd v State of Queensland - [2008] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:
Boyd v State of Queensland & Anor [2008] QDC 208

PARTIES:
PHILLIPA JOAN BOYD
(Plaintiff/Applicant)

v
THE STATE OF QUEENSLAND

(First Defendant/First Respondent)

GOLD COAST CITY COUNCIL

(Second Defendant/Second Respondent)

FILE NO:
655 of 2004

PROCEEDING:
Application for leave to proceed

DELIVERED ON:
28 August 2008

DELIVERED AT:
Southport

HEARING DATE:
22 August 2008

JUDGE:
C.F. Wall Q.C.

ORDER:
Application dismissed with costs

CATCHWORDS:
PRACTICE and PROCEDURE - application to leave to proceed after more than 2 years - fault by Plaintiff and Plaintiff’s solicitors - relevant principles - leave refused.

Legislation referred to: Uniform Civil Procedure Rules 1999, rr 5(3), 389(2).

Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551 FAA; Hsu v. Wang & Ors at para [38] FAA; Bendeich v. Clout [2003] QDC 305 at para [42] per McGill SC DCJ FAA

COUNSEL
Plaintiff - Mr M E Pope
1st Defendant - Ms K Philipson
2nd Defendant - Mr K Howe

SOLICITORS:
Plaintiff - Mariners Solicitors
1st Defendant - Crown Law
2nd Defendant - Minter Ellison Lawyers

HIS HONOUR: This is an application by the plaintiff for leave to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules. The defendants have each applied for an order that the plaintiff's claim against them be dismissed for want of prosecution. The success of these applications depends on the outcome of the defendants' application for leave to proceed.

The plaintiff's claim is for damages for personal injuries and loss suffered by her when she stepped into a depression in a footpath on the Gold Coast and fell heavily on 9 November 2001.

The limitation period has expired.

The relevant chronology is:

27th October 2004 Claim and statement of claim filed.
26th November 2004 Defence of the second defendant filed.
8th December 2004 Defence of the first defendant filed.

8th February 2005              Replies to Defences filed. Amended statement of claim filed adding a particular of negligence against the second defendant.
10th February 2005            Replies served.
23rd February 2005            Amended statement of claim served on the second defendant.
1st March 2005                   Amended defence filed by the second defendant.
2nd June 2005  Plaintiff's statement of loss and damage served on the second defendant.
15th July 2005  First defendant's statement of expert and economic evidence served on the plaintiff.
29th July 2005  Second defendant's statement of expert and economic evidence and list of documents served on the plaintiff.

This was the last step in the proceeding for the purposes of rule 389(2). Since then the following occurred:

30th May 2007  The plaintiff proposed mediation to the second defendant.
25th July 2007  The second defendant advised it would only attend mediation if the first defendant also attended.
31st July 2007  The plaintiff proposed mediation to the first defendant.
6th August 2007                  The first defendant advised it would not participate in mediation until the plaintiff provided further and better particulars requested on the 23rd November 2005. These have still not been provided.
These are not…

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: [2008] QDC 208
Decision Date: 28 August 2008

CaseChat Overview and Summary

The application of the plaintiff, Boyd, to be granted leave to proceed with his claim against the defendant, the State of Queensland, was dismissed by the court. The plaintiff sought leave to proceed with his claim more than two years after it had been initially filed, citing various faults attributed to both himself and his solicitors. The Uniform Civil Procedure Rules 1999, specifically rules 5(3) and 389(2), were central to the court's analysis of the application. The plaintiff's delay in seeking leave and the associated faults were scrutinized under established legal principles, including those articulated in Brisbane South Regional Health Authority v. Taylor, Hsu v. Wang & Ors, and Bendeich v. Clout.

The court considered the legal issues regarding the application for leave to proceed with a claim after a significant delay, and whether the delay was accompanied by any faults by the plaintiff or his solicitors that would warrant granting leave. The court was tasked with determining whether the plaintiff's delay and faults were excusable under the circumstances and whether justice would be served by allowing the claim to proceed. The principles from the referenced cases guided the court's analysis, emphasizing the importance of timeliness and the need to prevent an abuse of process.

The court found that the plaintiff's delay in seeking leave to proceed was not excusable, and the faults identified were not sufficient to warrant the granting of leave. The court held that the plaintiff had not demonstrated any exceptional circumstances that would justify the delay and the associated faults. The application for leave was dismissed with costs awarded to the defendant. The reasoning underscored the importance of adherence to procedural timelines and the need to ensure that legal processes are not unduly prolonged or abused.

Orders

Orders of the court

Application dismissed with costs

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:	Boyd v State of Queensland & Anor [2008] QDC 208
PARTIES:	PHILLIPA JOAN BOYD (Plaintiff/Applicant) v THE STATE OF QUEENSLAND (First Defendant/First Respondent) GOLD COAST CITY COUNCIL (Second Defendant/Second Respondent)
FILE NO:	655 of 2004
PROCEEDING:	Application for leave to proceed
DELIVERED ON:	28 August 2008
DELIVERED AT:	Southport
HEARING DATE:	22 August 2008
JUDGE:	C.F. Wall Q.C.
ORDER:	Application dismissed with costs
CATCHWORDS:	PRACTICE and PROCEDURE - application to leave to proceed after more than 2 years - fault by Plaintiff and Plaintiff’s solicitors - relevant principles - leave refused. Legislation referred to: Uniform Civil Procedure Rules 1999, rr 5(3), 389(2). Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551 FAA; Hsu v. Wang & Ors at para [38] FAA; Bendeich v. Clout [2003] QDC 305 at para [42] per McGill SC DCJ FAA
COUNSEL	Plaintiff - Mr M E Pope 1st Defendant - Ms K Philipson 2nd Defendant - Mr K Howe
SOLICITORS:	Plaintiff - Mariners Solicitors 1st Defendant - Crown Law 2nd Defendant - Minter Ellison Lawyers