Drake v PKF (Gold Coast) Pty Ltd - [2023] QSC 45

SUPREME COURT OF QUEENSLAND

CITATION:

Drake v PKF (Gold Coast) Pty Ltd & Anor [2023] QSC 45

PARTIES:

PETER CHARLES DRAKE

(plaintiff/respondent)

v
PKF (GOLD COAST) PTY LTD
ACN 137 531 250

(first defendant/applicant)
SCOTT JAMES McMURTRIE
(second defendant/applicant)

FILE NO:

2822 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2023

JUDGE:

Cooper J

ORDER:

1.    Paragraphs numbered 48 to 51 and 65 of the statement of claim filed on 9 December 2022 are struck out, without leave to replead.

2.   The proceeding is dismissed for want of prosecution.

3.   The defendants file and serve written submissions on costs limited to four pages by 4 pm on 23 March 2023.

4.   The plaintiff file and serve written submissions on costs limited to four pages by 4 pm on 31 March 2023.

5.   The question of costs will be decided on the papers.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff has amended his statement of claim ten times – where the tenth statement of claim contains no significant amendments to cure the previously identified deficiencies in the pleading – whether the statement of claim should be struck out – whether leave to replead should be granted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff commenced proceedings in 2019 arising from alleged negligence of the first and second defendants in 2013 – where the tenth amended statement of claim as relating to causation and loss have been struck out without leave to replead – where the defendants seek the proceeding be dismissed pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld) or the inherent jurisdiction of the court – whether the proceeding should be dismissed

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 280

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401, related
Drake v PKF (Gold Coast) Pty Ltd & Anor [2021] QCA 83, related
Drake v PKF (Gold Coast) Pty Ltd & Anor [2022] QSC 197, related
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, applied
Graham & Linda Huddy Nominees Pty Ltd v Byrne & Ors [2016] QSC 221, cited
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27, cited
PKF (Gold Coast) Pty Ltd & Anor v Drake [2021] QSC 326, related
Quinlan v Rothwell

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.

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Details

Case: [2023] QSC 45
Decision Date: 16 March 2023

CaseChat Overview and Summary

Drake brought an action against PKF (Gold Coast) Pty Ltd, along with two other defendants, in the Queensland Supreme Court. The action arose from alleged negligence by the defendants in 2013, and Drake had amended his statement of claim ten times. The defendants sought to have Drake's statement of claim struck out, arguing that it contained deficiencies that had not been addressed in the most recent amendments. Additionally, the defendants applied for the proceeding to be dismissed due to Drake's lack of progress and want of prosecution.

The court considered whether Drake's statement of claim should be struck out without leave to replead and whether the proceeding should be dismissed for want of prosecution. The court found that Drake had not made significant amendments to his statement of claim to address the deficiencies identified previously. The defendants argued that they had suffered prejudice due to the unresolved proceeding, including increased insurance premiums and less favourable terms of cover. Although this prejudice did not directly impact the ability to ensure a fair trial, it did contribute to the consideration of whether the proceeding should be dismissed.

The court concluded that it was appropriate to exercise its inherent power to dismiss the action for want of prosecution. The court found that Drake had not taken reasonable steps to progress the proceeding, and the defendants had suffered prejudice due to the unresolved proceeding. The court struck out certain paragraphs of Drake's statement of claim without leave to replead and dismissed the proceeding for want of prosecution. The court ordered that the defendants and Drake file written submissions on costs, limited to four pages each, and that the question of costs would be decided on the papers.

Orders

Orders of the court

1. Paragraphs numbered 48 to 51 and 65 of the statement of claim filed on 9 December 2022 are struck out, without leave to replead.

2. The proceeding is dismissed for want of prosecution.

3. The defendants file and serve written submissions on costs limited to four pages by 4 pm on 23 March 2023.

4. The plaintiff file and serve written submissions on costs limited to four pages by 4 pm on 31 March 2023.

5. The question of costs will be decided on the papers.

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

The defendants relied on other prejudice, including a significant increase in the first defendant’s professional indemnity insurance premiums, less favourable terms of cover and reduced willingness of insurers to offer cover in light of the unresolved proceeding.[48] That prejudice does not go to the ability to ensure a fair trial. Nevertheless, it is relevant in my view to the consideration that members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.[49] This extends to corporate defendants.[50][48]Affidavit of Matthew David Butler filed 4 May 2022 (Court document 62), [2] – [7]; Affidavit of Matthew David Butler filed 8 March 2023 (by leave).[49]Tyler v Custom Credit Corp Ltd [2000] QCA 178, [2].[50]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 214 [101].Conclusion Balancing the various factors, I am satisfied that this is an appropriate case in which to exercise the court’s inherent power to dismiss the action for want of prosecution. In those circumstances it is unnecessary to consider the defendants’ application in the alternative for directions.Orders The orders will be:1.Paragraphs numbered 48 to 51 and 65 of the statement of claim filed on 9 December 2022 are struck out, without leave to replead.2.The proceeding is dismissed for want of prosecution.3.The defendants file and serve written submissions on costs limited to four pages by 4 pm on 23 March 2023.4.The plaintiff file and serve written submissions on costs limited to four pages by 4 pm on 31 March 2023.5.The question of costs will be decided on the papers.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Drake v PKF (Gold Coast) Pty Ltd & Anor [2023] QSC 45
PARTIES:	PETER CHARLES DRAKE (plaintiff/respondent) v PKF (GOLD COAST) PTY LTD ACN 137 531 250 (first defendant/applicant) SCOTT JAMES McMURTRIE (second defendant/applicant)
FILE NO:	2822 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2023
JUDGE:	Cooper J
ORDER:	1. Paragraphs numbered 48 to 51 and 65 of the statement of claim filed on 9 December 2022 are struck out, without leave to replead. 2. The proceeding is dismissed for want of prosecution. 3. The defendants file and serve written submissions on costs limited to four pages by 4 pm on 23 March 2023. 4. The plaintiff file and serve written submissions on costs limited to four pages by 4 pm on 31 March 2023. 5. The question of costs will be decided on the papers.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the plaintiff has amended his statement of claim ten times – where the tenth statement of claim contains no significant amendments to cure the previously identified deficiencies in the pleading – whether the statement of claim should be struck out – whether leave to replead should be granted PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff commenced proceedings in 2019 arising from alleged negligence of the first and second defendants in 2013 – where the tenth amended statement of claim as relating to causation and loss have been struck out without leave to replead – where the defendants seek the proceeding be dismissed pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld) or the inherent jurisdiction of the court – whether the proceeding should be dismissed Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 280 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401, related Drake v PKF (Gold Coast) Pty Ltd & Anor [2021] QCA 83, related Drake v PKF (Gold Coast) Pty Ltd & Anor [2022] QSC 197, related Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, applied Graham & Linda Huddy Nominees Pty Ltd v Byrne & Ors [2016] QSC 221, cited Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27, cited PKF (Gold Coast) Pty Ltd & Anor v Drake [2021] QSC 326, related Quinlan v Rothwell