Collier v State of Qld - [2010] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

Collier v State of Qld [2010] QSC 254

PARTIES:

MARION LOUISE COLLIER
(plaintiff/applicant/cross-respondent)
v
STATE OF QUEENSLAND
(defendant/respondent/cross-applicant)

FILE NO/S:

SC No 4740 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2010

JUDGE:

Atkinson J

ORDER:

The plaintiff’s application filed 3 November 2009 be dismissed.1.

The plaintiff’s application filed 11 February 2010 be dismissed.2.

The plaintiff’s claim against the defendant be dismissed for want of prosecution.3.

The plaintiff pay the defendant’s costs of and incidental to the applications and the proceeding to be assessed.4.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where plaintiff/applicant repeatedly failed to comply with pleading rules – where plaintiff/applicant’s statement of claim was repeatedly struck out – where plaintiff/applicant lacked any prospect of success in the action – where plaintiff/applicant required leave to file a further statement of claim – whether leave should be granted

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where defendant/cross-applicant applied to strike out proceedings for want of prosecution – where plaintiff/cross-respondent had not taken a step in the proceeding for more than two years – whether proceedings should be struck out for want of prosecution

Civil Liability Act 2003 (Qld), s 52
Crown Proceedings Act 1980 (Qld), s 19(1)
Defamation Act 2005 (Qld), s 27, s 30, s 37
Limitation of Actions Act 1974 (Qld), s 10AA, s 32A
Personal Injuries Proceedings Act 2002 (Qld), s 9
Supreme Court of Queensland Act 1991 (Qld), s 85
Uniform Civil Procedure Rules 1999 (Qld), r 146, r 149, r 150, r 155, r 157, r 280, r 389

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, cited
Conde v Burchill & Horsey Lawyers [2009] QSC 291, cited
D’Orta-Ekenaike v Victorian Legal Aid & Anor (2005) 223 CLR 1; [2005] HCA 12, cited
Hsu & Ors v Wang & Ors [2004] QSC 324, cited
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, cited
Robinson v Laws & Anor [2007] QSC 152, cited
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied

COUNSEL:

The applicant/cross-respondent appeared for herself
P K Feeney for the respondent/cross-applicant

SOLICITORS:

The applicant/cross-respondent appeared on her own behalf
Crown Solicitor for the respondent/cross-applicant

In order to understand the matters before the court it is necessary to recite something of the history of this proceeding. The litigation arises out of events that occurred at the plaintiff’s Russell Island home on 16 March 2003. On that date three police…

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: [2010] QSC 254
Decision Date: 20 July 2010

CaseChat Overview and Summary

The Supreme Court of Queensland heard a case involving Collier as the plaintiff and the State of Queensland as the defendant. The plaintiff sought leave to file a further statement of claim after his previous ones were repeatedly struck out due to non-compliance with pleading rules. The State of Queensland applied to have the proceedings struck out for want of prosecution, as the plaintiff had not taken any steps in the case for over two years. The central legal issues were whether the plaintiff should be granted leave to file another statement of claim and whether the proceedings should be dismissed for lack of prosecution.

The court considered the plaintiff's history of non-compliance with the rules, noting that the plaintiff had little prospect of success in the action. The court concluded that the plaintiff's repeated failures to comply with the rules and the lack of any reasonable prospect of success justified denying the plaintiff leave to file another statement of claim. Additionally, the court found that the plaintiff's inactivity in the proceedings for over two years warranted the dismissal of the case for want of prosecution. The court ordered the dismissal of the plaintiff's applications, the dismissal of the plaintiff's claim, and that the plaintiff pay the defendant's costs of and incidental to the applications and the proceeding.

The court's reasoning was grounded in the plaintiff's persistent failure to follow procedural requirements and the lack of any viable path to success. The court found that the plaintiff's repeated strikes out of the statement of claim and the prolonged inactivity in the case justified the dismissal of the proceedings. The court's final orders dismissed the plaintiff's applications, the plaintiff's claim against the defendant, and ordered the plaintiff to pay the defendant's costs of and incidental to the applications and the proceeding.

Orders

Orders of the court

The plaintiff’s application filed 3 November 2009 be dismissed.1.

The plaintiff’s application filed 11 February 2010 be dismissed.2.

The plaintiff’s claim against the defendant be dismissed for want of prosecution.3.

The plaintiff pay the defendant’s costs of and incidental to the applications and the proceeding to be assessed.4.

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:	Collier v State of Qld [2010] QSC 254
PARTIES:	MARION LOUISE COLLIER (plaintiff/applicant/cross-respondent) v STATE OF QUEENSLAND (defendant/respondent/cross-applicant)
FILE NO/S:	SC No 4740 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	20 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2010
JUDGE:	Atkinson J
ORDER:	The plaintiff’s application filed 3 November 2009 be dismissed.1. The plaintiff’s application filed 11 February 2010 be dismissed.2. The plaintiff’s claim against the defendant be dismissed for want of prosecution.3. The plaintiff pay the defendant’s costs of and incidental to the applications and the proceeding to be assessed.4.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where plaintiff/applicant repeatedly failed to comply with pleading rules – where plaintiff/applicant’s statement of claim was repeatedly struck out – where plaintiff/applicant lacked any prospect of success in the action – where plaintiff/applicant required leave to file a further statement of claim – whether leave should be granted PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where defendant/cross-applicant applied to strike out proceedings for want of prosecution – where plaintiff/cross-respondent had not taken a step in the proceeding for more than two years – whether proceedings should be struck out for want of prosecution Civil Liability Act 2003 (Qld), s 52 Crown Proceedings Act 1980 (Qld), s 19(1) Defamation Act 2005 (Qld), s 27, s 30, s 37 Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Personal Injuries Proceedings Act 2002 (Qld), s 9 Supreme Court of Queensland Act 1991 (Qld), s 85 Uniform Civil Procedure Rules 1999 (Qld), r 146, r 149, r 150, r 155, r 157, r 280, r 389 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, cited Conde v Burchill & Horsey Lawyers [2009] QSC 291, cited D’Orta-Ekenaike v Victorian Legal Aid & Anor (2005) 223 CLR 1; [2005] HCA 12, cited Hsu & Ors v Wang & Ors [2004] QSC 324, cited Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, cited Robinson v Laws & Anor [2007] QSC 152, cited Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied
COUNSEL:	The applicant/cross-respondent appeared for herself P K Feeney for the respondent/cross-applicant
SOLICITORS:	The applicant/cross-respondent appeared on her own behalf Crown Solicitor for the respondent/cross-applicant