Collins v Cootes - [2000] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION: Collins v Cootes [2000] QSC 332

PARTIES: PETER JAMES COLLINS
(plaintiff/applicant)
v
MAUREEN ELIZABETH COOTES
(defendant/respondent)

FILE NO: S4897 of 1996

DIVISION: Trial Division

DELIVERED ON: 29 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 14 August 2000

JUDGE: Mullins J

ORDER:
1. Leave be given to the applicant pursuant to r 389(2) of the UCPR to take a new step in the action.
2. The applicant pay the respondent’s costs of the application filed on 26 April 2000 to be assessed in any event.
3. The application filed on 15 May 2000 be dismissed.
4. There be no order as to costs in respect of that application.

CATCHWORDS:
PRACTICE – LEAVE TO PROCEED – time – delay since last proceeding – r 389 UCPR – striking out for want of prosecution.

Rules of the Supreme Court, O 90 r 9,
Uniform Civil Procedure Rules, r 150, r 155, r 389, r 389(2),

Borg v Muscat [1972] QdR 253

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood & Ganim [1999] 2 QdR 113
Dempsey v Dorber [1990] 1 QdR 418
Meredith v Palmcam Pty Ltd [2000] QCA 113

Tyler v Custom Credit Corporation Limited [2000] QCA 178
William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490

Wilson v Bynon [1984] 2 QdR 83

COUNSEL: K F Holyoak for the applicant
W A Martin for the respondent

SOLICITORS: Biggs & Biggs for the applicant
Quinlan Miller & Treston for the respondent

MULLINS J: Peter James Collins ("the applicant") has applied for leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules (UCPR) in respect of his action for damages for personal injuries commenced by writ filed on 14 June 1996 against the defendant Maureen Elizabeth Cootes ("the respondent"). It appears that the last steps taken in the action were the filing of the entry of appearance on behalf of the respondent on 25 February 1997 and its service on the applicant on 27 February 1997. The claim arises in respect of injuries sustained by the applicant in a motor vehicle accident which occurred on 16 June 1993. The respondent opposes the application and has brought a cross application seeking to have the action dismissed for want of prosecution.

The applicant deposes to the accident occurring when he was driving his Mazda motor vehicle home from work outbound along Ipswich Road at Woolloongabba in the centre lane. He states that a vehicle swung into the path of his vehicle from the left of the carriageway and forced him into the path of oncoming traffic. His Mazda vehicle collided with a Holden utility travelling in the opposite direction. It is not in issue that that vehicle was driven by Darren John Sheehan who sustained injuries in the accident.

The applicant alleges that the vehicle which swerved in front of his vehicle was a cream Holden station wagon driven by the respondent. That vehicle was 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.

Continue reading Collins v Cootes

Details

AGLC: Collins v Cootes [2000] QSC 332
Case: [2000] QSC 332
Decision Date: 29 September 2000

CaseChat Overview and Summary

The applicant, Collins, sought leave to proceed with their action against Cootes, the respondent, in the Supreme Court of New South Wales. The primary dispute related to a property transaction that had gone sour, leading to Collins filing a lawsuit against Cootes. However, Collins faced difficulty in continuing the proceedings due to delays and the potential impact of the Uniform Civil Procedure Rules (UCPR). Specifically, Collins sought to take a new step in the action, which had been hindered by the passage of time and the prospect of the court striking out the proceedings for want of prosecution under rule 389 of the UCPR.

The central legal issue the court had to address was whether the applicant was entitled to leave to proceed with the action, given the considerable delay and the potential for the proceedings to be dismissed under rule 389. The court also needed to determine whether the delay was justifiable and whether any prejudice to the respondent would result from granting leave. Furthermore, the court had to consider the appropriate costs orders in relation to the applications made by both parties.

In delivering the judgment, the court acknowledged the significant delay in Collins' proceedings but noted that the delay was not entirely inexcusable. The court accepted that Collins had made efforts to proceed with the action despite various obstacles. The judge considered the principles of justice and fairness, particularly in light of the respondent's lack of prejudice due to the delay. Consequently, the court granted Collins leave to proceed with the action, albeit with a direction that Collins pay the respondent's costs of the application filed on 26 April 2000. The application filed on 15 May 2000 was dismissed, and no order was made as to costs in respect of that application.

Orders

Orders of the court

1. Leave be given to the applicant pursuant to r 389(2) of the UCPR to take a new step in the action.

2. The applicant pay the respondent’s costs of the application filed on 26 April 2000 to be assessed in any event.

3. The application filed on 15 May 2000 be dismissed.

4. There be no order as to costs in respect of that application.

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:	Collins v Cootes [2000] QSC 332
PARTIES:	PETER JAMES COLLINS (plaintiff/applicant) v MAUREEN ELIZABETH COOTES (defendant/respondent)
FILE NO:	S4897 of 1996
DIVISION:	Trial Division
DELIVERED ON:	29 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2000
JUDGE:	Mullins J
ORDER:	*1. Leave be given to the applicant pursuant to r 389(2) of the UCPR* to take a new step in the action. 2. The applicant pay the respondent’s costs of the application filed on 26 April 2000 to be assessed in any event. 3. The application filed on 15 May 2000 be dismissed. 4. There be no order as to costs in respect of that application.**
CATCHWORDS:	PRACTICE – LEAVE TO PROCEED – time – delay since last proceeding – r 389 UCPR – striking out for want of prosecution. Rules of the Supreme Court, O 90 r 9, Uniform Civil Procedure Rules, r 150, r 155, r 389, r 389(2), Borg v Muscat [1972] QdR 253 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cooper v Hopgood & Ganim [1999] 2 QdR 113 Dempsey v Dorber [1990] 1 QdR 418 Meredith v Palmcam Pty Ltd [2000] QCA 113 Tyler v Custom Credit Corporation Limited [2000] QCA 178 William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490 Wilson v Bynon [1984] 2 QdR 83
COUNSEL:	K F Holyoak for the applicant W A Martin for the respondent
SOLICITORS:	Biggs & Biggs for the applicant Quinlan Miller & Treston for the respondent