Drake v PKF (Gold Coast) Pty Ltd - [2022] QSC 197

SUPREME COURT OF QUEENSLAND

CITATION:

Drake v PKF (Gold Coast) Pty Ltd & another [2022] QSC 197

PARTIES:

PETER CHARLES DRAKE

(plaintiff)

v
PKF (GOLD COAST) PTY LTD ACN 137 531 250
(first defendant)
SCOTT JAMES McMURTRIE

(second defendant)

FILE NO/S:

2822 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2022

JUDGE:

Hindman J

ORDER:

1. The statement of claim filed by the plaintiff on 26 July 2022 is struck out pursuant to rule 171 of the UCPR.

2. The plaintiff has leave to file an amended statement of claim.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS –– where the plaintiff is seeking damages for a claim in negligence against the defendants – where the original statement of claim was struck out and the plaintiff was given six months to re-plead – where the amended pleadings have continually contained the same defects as the earlier pleadings and been struck out – where the relevant events occurred many years ago – whether the new statement of claim should be struck out – whether leave to replead should be given – whether there are exceptional circumstances such that the proceeding should be dismissed.

Corporations Act 2001 (Cth)

Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401
Drake v PKF (Gold Coast) Pty Ltd & Anor [2021] QCA 83
Graham & Linda Huddy Nominees Pty Ltd v Byrne & Ors [2016] QSC 221

COUNSEL:

P Hackett for the applicant

B O’Donnell with DEF Chesterman for the respondents

SOLICITORS:

Mott Lawyers for the applicant

Hall & Wilcox for the respondents

Introduction

The defendants apply for the plaintiff’s amended statement of claim filed on 26 July 2022 (ninth statement of claim) to be struck out pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR), without leave to replead. If that relief is granted, the defendants further seek that the proceeding be dismissed pursuant to rule 280 of the UCPR or the inherent jurisdiction of the court.
The proceeding was commenced in March 2019. The defendants have not yet been required to defend the proceeding. That is because the plaintiff has yet not delivered a statement of claim compliant with the UCPR.
The ninth statement of claim is also non-compliant with the UCPR. I strike it out pursuant to rule 171 of the UCPR. I decline to dismiss the proceeding. I give the plaintiff leave to replead the statement of claim to address the non-compliances identified in these reasons.

Background to the progress of the proceeding

Some relevant background to the progress of the proceeding is conveniently set out in the judgment of the Court of Appeal in Drake v PKF (Gold Coast) Pty Ltd & Anor [2021] QCA 83, where at [4] the court recorded:
“[4] The material shows that the relevant steps…

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: [2022] QSC 197
Decision Date: 16 September 2022

CaseChat Overview and Summary

The plaintiff, Drake, brought an action against PKF (Gold Coast) Pty Ltd, alleging negligence. The original statement of claim was struck out, and Drake was given six months to re-plead. However, subsequent amended pleadings contained the same defects as the earlier pleadings and were also struck out. The events in question occurred many years ago. The court had to determine whether the new statement of claim should be struck out, whether leave to replead should be given, and whether there were exceptional circumstances to dismiss the proceeding.

The court had to consider the factors set out in the case law regarding the striking out of pleadings and whether there were exceptional circumstances warranting dismissal. The court noted that the plaintiff had been given multiple opportunities to amend the pleadings and that the relevant events occurred many years ago. Despite these factors, the court found that the plaintiff had not taken the necessary steps to ensure that the pleadings were sufficient. The court held that the plaintiff's repeated failure to rectify the defects in the pleadings constituted a want of prosecution and lack of progress in the proceeding.

The statement of claim filed by Drake on 26 July 2022 was struck out pursuant to rule 171 of the UCPR. However, Drake was granted leave to file an amended statement of claim. The court noted that the plaintiff had been given multiple opportunities to amend the pleadings and that the relevant events occurred many years ago. Despite these factors, the court found that the plaintiff had not taken the necessary steps to ensure that the pleadings were sufficient. The court held that the plaintiff's repeated failure to rectify the defects in the pleadings constituted a want of prosecution and lack of progress in the proceeding.

Orders

Orders of the court

1. The statement of claim filed by the plaintiff on 26 July 2022 is struck out pursuant to rule 171 of the UCPR.

2. The plaintiff has leave to file an amended statement of claim.

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.

CITATION:	Drake v PKF (Gold Coast) Pty Ltd & another [2022] QSC 197
PARTIES:	PETER CHARLES DRAKE (plaintiff) v PKF (GOLD COAST) PTY LTD ACN 137 531 250 (first defendant) SCOTT JAMES McMURTRIE (second defendant)
FILE NO/S:	2822 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 September 2022
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2022
JUDGE:	Hindman J
ORDER:	1. The statement of claim filed by the plaintiff on 26 July 2022 is struck out pursuant to rule 171 of the UCPR. 2. The plaintiff has leave to file an amended statement of claim.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS –– where the plaintiff is seeking damages for a claim in negligence against the defendants – where the original statement of claim was struck out and the plaintiff was given six months to re-plead – where the amended pleadings have continually contained the same defects as the earlier pleadings and been struck out – where the relevant events occurred many years ago – whether the new statement of claim should be struck out – whether leave to replead should be given – whether there are exceptional circumstances such that the proceeding should be dismissed. Corporations Act 2001 (Cth) Drake v PKF (Gold Coast) Pty Ltd & Anor [2020] QSC 401 Drake v PKF (Gold Coast) Pty Ltd & Anor [2021] QCA 83 Graham & Linda Huddy Nominees Pty Ltd v Byrne & Ors [2016] QSC 221
COUNSEL:	P Hackett for the applicant B O’Donnell with DEF Chesterman for the respondents
SOLICITORS:	Mott Lawyers for the applicant Hall & Wilcox for the respondents