Separate reasons for judgment of each member of the Court; each concurring as to the orders made. ___________________________________________________________________________

APPEAL DISMISSED WITH COSTS

___________________________________________________________________________

CATCHWORDS: CIVIL PROCEDURE - application to strike out action - plaintiff breached

order to deliver a statement of claim - whether case fell within either limb of the test in Birkett v. James - whether the Birkett v. James test should be applied - whether there was intentional and contumacious default - whether the claim might be incapable of rational formulation - whether the Court should put an end to the dispute under its inherent jurisdiction - whether Court should strike out action if limitation period has not expired.
Supreme Court Rules O. 31 r. 1
Birkett v. James [1978] A.C. 297
Baylin Pty Ltd v. Abel Lemon & Company Pty Ltd (Appeal No. 10318 of
1996, 24 October 1997)
Arbuthnot Latham Bank Ltd v. Trafalgar Holdings Ltd [1997] T.L.R. 698
Stollznow v. Calvert [1980] 2 N.S.W.L.R. 749
Witten v. Lombard Australia Ltd. (1968) 88 W.N. (Pt. 1) N.S.W. 405
Lenijamar Pty Ltd v. AGC (Advances) Limited (1990) 27 F.C.R. 388
Masel v. Transport Industries Insurance Co. Ltd [1995] 2 V.R. 328
Norbis v. Norbis (1986) 161 C.L.R. 513
Ellis v. Leeder (1951) 82 C.L.R. 645
In Re Will of Gilbert (1946) 46 S.R.(N.S.W.) 318

Counsel:	Mr K Dorney Q.C. with him Mr I Erskine for the appellant. Mr P Keane Q.C. for the respondent.
Solicitors:	Hawthorn Cuppaidge & Badgery for the appellant. Corrs Chambers Westgarth for the respondent.
Hearing date:	14 May 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8424 of 1997.

Brisbane

Before Pincus J.A.

McPherson J.A.
Derrington J.

[Cooper v. Hopgood & Ganim]

BETWEEN:

RALPH DUNCAN COOPER

(Plaintiff) Appellant

AND:

HOPGOOD & GANIM (a firm)

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 2 June 1998

This is an appeal from an order of Fryberg J. striking out an action brought by the appellant

plaintiff against the defendant a firm of solicitors. The basis of the application to strike out was that the

plaintiff breached an order to deliver a statement of claim and the defendant relied upon the inherent

jurisdiction of the court as well as upon O. 31 r. 1 of the Supreme Court Rules.

Since the judge’s order was one of a discretionary character, the appeal cannot succeed unless

the appellant can show the existence of such an error as is mentioned in House v. The King (1936) 55

C.L.R. 499 at 504, 505. Mr Dorney Q.C., who led Mr Erskine for the appellant in 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.

Continue reading Cooper v Hopgood & Ganim

Details

AGLC: Cooper v Hopgood & Ganim [1998] QCA 114
Case: [1998] QCA 114
Decision Date: 2/06/1998

CaseChat Overview and Summary

This case concerns an appeal by Ralph Duncan Cooper against an order dismissing his action against Hopgood & Ganim for want of prosecution. The appeal was dismissed with costs. The legal issues revolved around whether the primary judge erred in striking out the plaintiff's action due to his failure to comply with an order to deliver a statement of claim. The court examined whether the case fell within either limb of the test established in Birkett v. James, whether the test should be applied, and whether there was intentional and contumacious default, or inordinate and inexcusable delay. The court also considered whether the claim might be incapable of rational formulation and whether the court should put an end to the dispute under its inherent jurisdiction. The court concluded that the primary judge's order should stand, as the appellant had not yet properly set out his allegations against the respondent, despite the action being begun in 1994, in relation to events that seem to have taken place in 1987 and 1988. The delay was considered inexcusable, and the court held that it was desirable for litigants and their lawyers to understand that the court would not necessarily countenance such a long delay in achieving a formulation of the allegations on which the action is based.

Orders