Cummings v Davis

[2001] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

Cummings & Anor v Davis & Anor [2001] QCA 293

PARTIES:

ALLAN JAMES CUMMINGS and LYNN MARI CUMMINGS
(plaintiffs/appellants)
v
PETER J DAVIS and BRIAN T EGAN
(defendants/respondents)

FILE NO/S:

Appeal No 5783 of 2000
SC No 2099 of 1994

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2001

JUDGES:

McMurdo P, Thomas JA, Helman J
Separate reasons for judgment of each member of the Court; McMurdo P and Helman J concurring as to the orders made, Thomas JA dissenting.

ORDER:

Appeal allowed with costs.  Set aside the order of 7 June 2000, and order that the respondents’ application be dismissed with costs.

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS – whether primary judge erred in dismissing appellants’ proceeding in negligence against respondents for want of prosecution – where significant delays in proceedings on part of both parties – where respondents had not complied with rules of court – where dismissal of proceeding permanently denied appellants the opportunity to pursue their claim

Gronow v Gronow (1979) 144 CLR 513, applied
House v The King (1936) 55 CLR 499, considered
Mace v Murray (1955) 92 CLR 370, considered
Quinlan v Rothwell & Anor [2001] QCA 176; Appeal No 8426 of 2000, 11 May 2001, considered

COUNSEL:

AJ Morris QC for appellants
GA Thompson SC for respondents

SOLICITORS:

Saunders Downing for appellants
Minter Ellison for respondents

1. McMURDO P:  I agree with the reasons for judgment of Helman J, and with the orders he proposes.

1. THOMAS JA: This is an appeal against a decision of Chesterman J who dismissed the appellants’ action for want of prosecution.  The action was against the appellants’ former solicitors for damages for professional negligence.  The relevant events occurred in the latter part of 1988.

1. The circumstances giving rise to the claim are not particularly complicated, but the question of liability depends upon the instructions that were given or not given by the appellants, the extent to which they were prepared to compromise to ensure the settlement of their transaction, and the reasonableness or otherwise of the solicitors’ response to such instructions as were given.

1. Helman J has set out details concerning the procedural steps which occurred after the appellants commenced proceedings in 1994.  I shall not repeat those details.  It will suffice for me to indicate the main matters which lead me to the view that the decision at first instance was not affected by material error, and was within the range of the discretion which it fell to his Honour to exercise.

1. The main factors are these:

1.          The primary issue in the litigation will probably be decided substantially on oral recollection of events now more than 12 years old.  So far as is known there are no conclusive or virtually conclusive documents or…