Dover v Mercantile Mutual Insurance (Aust) Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Dover v Mercantile Mutual Insurance (Aust) Ltd & Ors [2005] QDC 160

PARTIES:

BRIAN JOHN DOVER

Plaintiff

v

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

First Defendant

and

GREGORY JAMES McCOSKER

Second Defendant

and

STATE OF QUEENSLAND

Third Defendant

FILE NO/S:

BD1004/2002

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2005

JUDGE:

McGill DCJ

ORDER:

Applications dismissed.

CATCHWORDS:

PRACTICE – Want of prosecution – delay - whether breach of implied undertaking to proceed expeditiously

UCPR r.5(4).

COUNSEL:

A J Macklin for the plaintiff
R C Morton for the second defendant
M J Burns for the third defendant

SOLICITORS:

Keith Scott and Associates for the plaintiff
McInnes Wilson for the second defendant
Crown solicitor for the third defendant.

1. In this matter there are two applications, by the second and third defendants, to dismiss the plaintiff’s action for want of prosecution. Both applications are based on r 5, and are seeking the exercise of the power in r 5(4) to impose appropriate sanctions if a party does not comply with the implied undertaking to proceed in an expeditious way. It was submitted that the plaintiff had failed to comply with that implied undertaking.

1. There is a specific statutory power in this court to dismiss an action for want of prosecution if two years have passed since the last step.[1] Neither defendant sought to rely on this power, on the basis that there had been, less than two years ago, a mediation pursuant to an order of the court, which was the last step in the action. On 28 April 2003 I ordered, by consent, that the parties proceed to participate in and act reasonably and genuinely in a mediation, in the usual form. The date fixed was 19 June 2003. On 23 June 2003, the mediator appointed by that order filed a certificate that the procedure had finished and the parties had not resolved their dispute. My order of 28 April 2003 provided among other things that the proceeding was stayed until six business days after the mediator’s certificate was filed or further earlier order. I am content to proceed on the basis that in those circumstances the mediation was a step in the proceeding for the purposes of s 85(2), and accordingly the power conferred by that section is not available.

   [1]Supreme Court of Queensland Act 1991 s 85.

1. It was not submitted on behalf of the plaintiff that, in the light of the express terms of s 85, this court did not have power under the UCPR to dismiss for want of prosecution unless there had been a period of two years since the last step was taken. There is authority that the power in r 5(4) extends to dismissal of a proceeding.[2]  That matter concerned a proceeding in the Supreme Court, but it has subsequently been said that this power of dismissal is also conferred on the District Court.[3]  On the other hand,…