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Dodd v O'Meara & AAI Limited

Dodd v O'Meara & AAI Limited

Case [2017] QDC 226 13 September 2017

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DISTRICT COURT OF QUEENSLAND

CITATION:

Dodd v O’Meara & AAI Limited [2017] QDC 226

PARTIES:

PAUL ANTHONY DODD (plaintiff)

v

ANDREW O’MEARA (first defendant)

AND

AAI LIMITED (ABN 48 005 297 807) TRADING AS AUSTRALIAN ASSOCIATED MOTOR INSURERS (second defendant)

FILE NO/S:

DC No 4725/11 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

29-31 August 2017

JUDGE:

Porter QC DCJ

ORDER:

1. Proceedings be dismissed.

2. Plaintiff pay the defendants’ costs including reserve

costs on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISMISSAL OF PROCEEDINGS – where the plaintiff sought damages for personal injuries – where liability was not in dispute – where the plaintiff did not comply with all of the orders relating to the further steps to be taken to progress the litigation – where plaintiff gave evidence in chief but refused to attend for completion of cross examination – where the plaintiff then dismissed his solicitors and filed a notice acting in person – where the plaintiff applied for an adjournment of the trial to obtain new representation – where following dismissal of the adjournment application the plaintiff declined to continue prosecute his case and left the court room – whether proceedings should be dismissed pursuant to Rule 658(1) UCPR.

Legislation

District Court of Queensland Act 1967 s 69.
Evidence Act 1977 s 39R.
UCPR r 547, r 658(1).

Cases
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303.
Hamond v NSW [2011] NSWCA 375.
In Marriage of F (2001) 161 FLR 189.
Lee v The Queen (1998) 195 CLR 594.
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 518.
Mango Boulevard Pty Ltd v Spencer [2010] QCA 207.
MBL v JP [2011] QCA 220.
McWhinney v Melbourne Health (2011) 31 VR 285.
Minogue v HREOC (1999) 84 FCR 438.
Neill v Nott (1994) 121 ALR 148.
Rajski v Scitec Corporation Ltd (Unreported NSWCA No 146 of 1986).
Ross v Hallam [2011] QCA 92.
Szrur v Minister for Immigration 216 FCR 445.
Thomson v Smith [2005] QCA 446.
Trkulja v Markovic [2015] VSCA 298.

COUNSEL:

Mr Smith for the plaintiff

Mr Crow QC for the defendants

SOLICITORS:

Parker Simmons for the plaintiff (Day 1 and 2 of the trial)
The plaintiff in person (Day 3)
Jensen McConaghy for the second defendant

Introduction

In this proceeding, the plaintiff, Mr Dodd, sought damages for personal injuries which he alleged were caused by a motor vehicle accident which occurred on 26 December 2007.
The trial commenced on Tuesday 29 August 2017. Liability was not in dispute. On Tuesday afternoon, Mr Crow QC, counsel for the defendants, commenced cross examination of Mr Dodd. After lunch on…

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 Dodd v O'Meara & AAI Limited

Details

AGLC: Dodd v O'Meara and AAI Limited [2017] QDC 226
Case: [2017] QDC 226
Decision Date: 13 September 2017

CaseChat Overview and Summary

The case of Dodd v O'Meara & AAI Limited involved a plaintiff who sought damages for personal injuries, with the issue of liability not being contested. The defendants applied for the dismissal of the plaintiff's proceedings under Rule 658 of the Uniform Civil Procedure Rules 1999 (NSW). The plaintiff had initially given evidence but refused to attend for cross-examination. After dismissing an application for an adjournment, the plaintiff left the courtroom and chose not to continue with the case.

The court had to determine whether the proceedings should be dismissed due to the plaintiff's non-compliance with procedural orders and his subsequent abandonment of the case. The primary focus was on whether the plaintiff's actions warranted a dismissal under Rule 658(1) UCPR, which empowers the court to dismiss proceedings if it appears to the court that the plaintiff is not prosecuting the proceeding with reasonable expedition or is otherwise failing to comply with the rules.

The court found that the plaintiff's failure to complete the required steps, including refusing to attend for cross-examination and subsequently leaving the courtroom after the dismissal of an adjournment application, amounted to a lack of reasonable expedition and a failure to comply with the rules. The court held that these actions warranted the dismissal of the proceedings. In light of this, the court ordered that the proceedings be dismissed and that the plaintiff pay the defendants' costs, including reserve costs, on the standard basis.

Orders

Orders of the court

1. Proceedings be dismissed.

2. Plaintiff pay the defendants’ costs including reserve

costs on the standard basis.

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.

Citations

AGLC Citation

Dodd v O'Meara and AAI Limited [2017] QDC 226

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Trkulja v Markovic
[2015] VSCA 298 Para 3

…approved and applied by the Full Court of the Federal Court in Szrur v Minister for Immigration 216 FCR 445 at 452- 454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22] [2] Neill v Nott (1994) 121 ALR 148 [3] [2015] VSCA 298 41 It is clear that a judge cannot become th…
Lee v The Queen
[2014] HCA 20 Para 13

…tantial unfairness in the further conduct of the trial on the merits by the defendants. [5] MBL v JP [2011] QCA 220 at [22]-[23]; Lee v The Queen (1998) 195 CLR 594 at [32]…
SZRUR v Minister for Immigration and Border Protection
[2013] FCAFC 146 Para 3

…d v NSW [2011] NSWCA 375 at [309] to [316], approved and applied by the Full Court of the Federal Court in Szrur v Minister for Immigration 216 FCR 445 at 452- 454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22] [2] Neill v Nott (1994) 121 ALR 148 [3] [2015] VSCA…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd
[2013] HCA 46 Para 5

…Similarly, in In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 the High Court observed: 51. In Aon Risk Services Australia Ltd v Australian National University , it was pointed out that case management is an accepted aspect of the system of civi…
Hamod v New South Wales
[2011] NSWCA 375 Para 3

…(2001) 161 FLR 189 at 215-227 (Full Court of the Family Court); McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26]; Hamond v NSW [2011] NSWCA 375 at [309] to [316], approved and applied by the Full Court of the Federal Court in Szrur v Minister for Immigration 216 FCR 445 at 452- 454; Trkulja v Markovic…
MBL v JP
[2011] QCA 220 Para 13

…the witness box, created the prospect of substantial unfairness in the further conduct of the trial on the merits by the defendants. [5] MBL v JP [2011] QCA 220 at [22]-[23]; Lee v The Queen (1998) 195 CLR 594 at [32]…
Ross v Hallam
[2011] QCA 92 Para 3

…l Court of the Federal Court in Szrur v Minister for Immigration 216 FCR 445 at 452- 454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22] [2] Neill v Nott (1994) 121 ALR 148 [3] [2015] VSCA 298 41 It is clear that a judge cannot become the advocate of the self-repres…
McWhinney v Melbourne Health
[2011] VSCA 22 Para 3

…cases); Minogue v HREOC (1999) 84 FCR 438 at [26] to [33]; In Marriage of F (2001) 161 FLR 189 at 215-227 (Full Court of the Family Court); McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26]; Hamond v NSW [2011] NSWCA 375 at [309] to [316], approved and applied by the Full Court of the Federal Court in Szrur v Minister for…
Mango Boulevard Pty Ltd v Spencer
[2010] QCA 207 Para 8

…Mr Crow also referred to Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 which referred to the above passage of Clarke JA with approval, but again in the context of consideration of the consequences for judgment estoppels or the application of the principles of abuse of process of a judgment given other than on…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 2

…In this context, observations made by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are apposite. The majority judgment (Gummow, Hayne, Crennan, Keifel and Bell JJ) noted at [98]: Of course, a just resolution of proceedings remains the paramount purpose …; but what is a “just resolution” is to be understood in lig…
Thomson v Smith
[2005] QCA 446 Para 3

…fered by the Second Defendant in respect of the Plaintiff’s conduct; · The dismissal of a claim in similar circumstances in Thomson v Smith [2005] QCA 446; · The Plaintiff has essentially withdrawn from the claim and a res judicata should arise.…
John Fairfax Publications Pty Ltd v Ryde Local Court
[2005] NSWCA 101 Para 3

…of common law — the Common Pleas, the King's Bench and the Exchequer Chamber: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476. There is, nevertheless, a penumbra of power which may not be expressly stated in the statute but which is necessarily conferred by statute by the v…
Re F: Litigants in person guidelines
[2001] FamCA 348 Para 3

…SWCA No 146 of 1986) at pp 14 and 27 (frequently cited in later cases); Minogue v HREOC (1999) 84 FCR 438 at [26] to [33]; In Marriage of F (2001) 161 FLR 189 at 215-227 (Full Court of the Family Court); McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26]; Hamond v NSW [2011] NSWCA 375 at [309] to [316], ap…
Minogue v Human Rights and Equal Opportunity Commission
[1999] FCA 85 Para 3

…nclude Rajski v Scitec Corporation Ltd (Unreported NSWCA No 146 of 1986) at pp 14 and 27 (frequently cited in later cases); Minogue v HREOC (1999) 84 FCR 438 at [26] to [33]; In Marriage of F (2001) 161 FLR 189 at 215-227 (Full Court of the Family Court); McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26]…
Lee v The Queen
[1998] HCA 60 Para 13

…prospect of substantial unfairness in the further conduct of the trial on the merits by the defendants. [5] MBL v JP [2011] QCA 220 at [22]-[23]; Lee v The Queen (1998) 195 CLR 594 at [32]…
Neil v Nott
[1994] HCA 23 Para 3

…ion 216 FCR 445 at 452- 454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22] [2] Neill v Nott (1994) 121 ALR 148 [3] [2015] VSCA 298 41 It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamental…
Taylor v Taylor
[1979] HCA 38 Para 3

…wers”. They are better described as incidental statutory powers: cf Taylor v Attorney-General [1975] 2 NZLR 675 at 680; Taylor v Taylor (1979) 143 CLR 1 at 5 and John Fairfax (at 476). In the case of the County Court of Victoria the closing words of s 49 are clearly intended to enlarge the “penumbra” of the statuto…
[1964] AC 1254
[1964] AC 1254 Para 3

…th the powers that are necessary “to enable it to act effectively within such jurisdiction”: see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301. These are not “inherent powers”. They are better described as incidental statutory powers: cf Taylor v Attorney-General [1975] 2 NZLR 675 at 680; Tayl…
[1975] 2 NZLR 675
[1975] 2 NZLR 675 Para 3

…C 1254 at 1301. These are not “inherent powers”. They are better described as incidental statutory powers: cf Taylor v Attorney-General [1975] 2 NZLR 675 at 680; Taylor v Taylor (1979) 143 CLR 1 at 5 and John Fairfax (at 476). In the case of the County Court of Victoria the closing words of s 49 are clearly intended…
Linprint Pty Ltd v Hexham Textiles Pty Ltd
114 ER 569

…013) 250 CLR 303. Hamond v NSW [2011] NSWCA 375. In Marriage of F (2001) 161 FLR 189. Lee v The Queen (1998) 195 CLR 594. Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 518. Mango Boulevard Pty Ltd v Spencer [2010] QCA 207. MBL v JP [2011] QCA 220. McWhinney v Melbourne Health (2011) 31 VR 285. Minogue v HREOC (1999) 84 FCR 438. Neill…

Legislation cited in this decision · 7

District Court of Queensland Act 1967 (Qld)
69 2 mentions (from Para 4)
Evidence Act 1977 (Qld)
39R 2 mentions (from Para 12)
County Court Act 1958 (Vic)
1 mention (from Para 3)
Court Procedures Rules 2006 (ACT)
1 mention (from Para 5)
Land Title Act 1994 (Qld)
1 mention (from Para 4)
Motor Accident Insurance Act 1994 (Qld)
1 mention (from Para 6)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 6)

CITATION:	Dodd v O’Meara & AAI Limited [2017] QDC 226
PARTIES:	PAUL ANTHONY DODD (plaintiff) v ANDREW O’MEARA (first defendant) AND AAI LIMITED (ABN 48 005 297 807) TRADING AS AUSTRALIAN ASSOCIATED MOTOR INSURERS (second defendant)
FILE NO/S:	DC No 4725/11 of 2017
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	29-31 August 2017
JUDGE:	Porter QC DCJ
ORDER:	1. Proceedings be dismissed. 2. Plaintiff pay the defendants’ costs including reserve costs on the standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISMISSAL OF PROCEEDINGS – where the plaintiff sought damages for personal injuries – where liability was not in dispute – where the plaintiff did not comply with all of the orders relating to the further steps to be taken to progress the litigation – where plaintiff gave evidence in chief but refused to attend for completion of cross examination – where the plaintiff then dismissed his solicitors and filed a notice acting in person – where the plaintiff applied for an adjournment of the trial to obtain new representation – where following dismissal of the adjournment application the plaintiff declined to continue prosecute his case and left the court room – whether proceedings should be dismissed pursuant to Rule 658(1) UCPR. Legislation District Court of Queensland Act 1967 s 69. Evidence Act 1977 s 39R. UCPR r 547, r 658(1). Cases Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303. Hamond v NSW [2011] NSWCA 375. In Marriage of F (2001) 161 FLR 189. Lee v The Queen (1998) 195 CLR 594. Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 518. Mango Boulevard Pty Ltd v Spencer [2010] QCA 207. MBL v JP [2011] QCA 220. McWhinney v Melbourne Health (2011) 31 VR 285. Minogue v HREOC (1999) 84 FCR 438. Neill v Nott (1994) 121 ALR 148. Rajski v Scitec Corporation Ltd (Unreported NSWCA No 146 of 1986). Ross v Hallam [2011] QCA 92. Szrur v Minister for Immigration 216 FCR 445. Thomson v Smith [2005] QCA 446. Trkulja v Markovic [2015] VSCA 298.
COUNSEL:	Mr Smith for the plaintiff Mr Crow QC for the defendants
SOLICITORS:	Parker Simmons for the plaintiff (Day 1 and 2 of the trial) The plaintiff in person (Day 3) Jensen McConaghy for the second defendant