Drane v Barolin Tower Pty Ltd - [2020] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

Drane v Barolin Tower Pty Ltd & Ors [2020] QDC 275

PARTIES:

MATTHEW NEVILLE DRANE

(plaintiff)

v

BAROLIN TOWER PTY LTD

ACN 097 673 508

(first defendant)

and

OTIS ELEVATOR COMPANY PTY LTD
ACN 002 873 065
(second defendant)
and
SYLVAN DEVELOPMENTS PTY LTD TRADING AS CORAL COAST REALTY
ACN 071 859 982
(third defendant)
and
RANECORP PTY LTD TRADING AS CBD REALTY
ACN 127 623 125

(fourth defendant)

FILE NO:

BD 1688 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

2 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2020

JUDGE:

Rinaudo AM DCJ

ORDER:

Application allowed

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where the plaintiff commenced a claim seeking damages for personal injuries in May 2016 – where there has been no step taken in the proceedings since December 2016 – where the plaintiff makes application to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) – where – the delay is solely attributable to the plaintiff’s solicitors and barrister rather than the plaintiff – where the circumstances replied upon by the plaintiff satisfy the non-exhaustive list of factors in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178.

LEGISLATION:

Personal Injuries Proceedings Act 2002 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dempsey v Dorber [1990] 1 Qd R 418
Hoy & McCormack v Honan & Anor [1997] QCA 250
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited (1999) QSC 372
Smiley v Watson [2002] 1 Qd R 560
The President‘s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor [2019] QSC 209
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
Quinlan v Rothwell [2002] 1 Qd R 647

Wilson v Bynon [1984] 2 Qd R 83

COUNSEL:
JP Kimmins for the plaintiff
AG Rae for the first, second and third defendants

BJ Heath for the fourth defendant

SOLICITORS:
Shine Lawyers for the plaintiff
Clyde & Co for the first defendant
King & Wood Mallesons for the second defendant
Finemore Walters & Story for the third defendant

Carter Newell for the fourth defendant

The plaintiff makes application for leave to take a step in the proceedings pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).
History
The following chronology of events is set out in the affidavit of Kylie Carson (solicitor for the plaintiff) filed 4 Aug 2020:[1]
[1]Court document 33.

Date	Party	Action
11 Mar 2012	Plaintiff	Personal injuries alleged to have been suffered.[2]
7 Aug 2012	Plaintiff	The plaintiff’s previous solicitors (Trilby Misso Lawyers) executed and delivered a Part 1 Notice of Claim (“Notice”) on the first defendant.[3]
18 Sept 2012	First…

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 Drane v Barolin Tower Pty Ltd

Details

AGLC: Drane v Barolin Tower Pty Ltd [2020] QDC 275
Case: [2020] QDC 275
Decision Date: 2 November 2020

CaseChat Overview and Summary

The case of Drane v Barolin Tower Pty Ltd concerns a plaintiff's application to take a step in a dormant proceeding, specifically seeking damages for personal injuries. The plaintiff commenced the claim in May 2016, but there has been no activity in the proceedings since December 2016. The application was made under rule 389 of the Uniform Civil Procedure Rules 1999 (Qld). The delay in taking steps in the proceedings was attributed to the plaintiff's solicitors and barrister, rather than the plaintiff himself. The plaintiff argued that the delay was due to factors such as the difficulty in locating the defendant's insurer, which satisfied the non-exhaustive list of factors identified in Tyler v Custom Credit Corp Ltd & Ors.

The legal issues before the court involved whether the plaintiff had acted diligently in pursuing the claim and whether the delay was attributable to the plaintiff or his legal representatives. The court considered the factors relevant to such applications, as set out in Tyler, and examined whether the plaintiff's conduct met the required standard. The plaintiff argued that obtaining a document by way of proceedings for non-party disclosure was not a step in the proceedings, but the court found that the last step taken was the filing of Notices of Contribution by the second defendant on 8 December 2016.

The court found that the plaintiff had not been diligent in pursuing his solicitors regarding the conduct of the action, particularly given the circumstances in which he was ignored and "fobbed off" with respect to his enquiries. The court also noted that the plaintiff's allegation that he sought to retain a different barrister was not supported by an affidavit and was raised too late. The court concluded that the delay was not attributable to the fourth defendant, who had made full disclosure of all relevant documents and responded properly throughout the proceedings. The court allowed the application, permitting the plaintiff to take a step in the dormant proceeding.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On the affidavit material before the court, the plaintiff was not diligent in perusing his solicitors in respect of the conduct of the action, particularly in circumstances in which he was ignored and “fobbed off” with respect to his enquiry as to the conduct of the action over a protracted period. It was submitted the court should regard with some suspicion the proposition that is now claimed the plaintiff sought to retain a different barrister, given the lateness with which this allegation has been raised and the fact it is not supported by an affidavit by the plaintiff. Further, it is submitted the proposition that any delay may be laid at the feet of the fourth defendant is wrong. The fourth defendant made full disclosure of all documents relevant to the claim during the course of the PIPA proceedings. The fourth defendant responded properly to the request made of it by the plaintiff throughout the course of the proceedings. Whilst the fourth defendant did not make disclosure within 28 days of the close of the proceedings, nor did the plaintiff and nor did the plaintiff pursue the fourth defendant to do so by making a demand for disclosure in accordance with the rules of filing an application seeking disclosure. The reason it did not do so is because the plaintiff himself had no interest in pursuing the claim.Discussion and decision Both parties relied on and addressed the factors relevant to these types of applications set out by Atkinson J in Tyler.[68]Of course, this is not a rigid list and regard must be had to all the relevant circumstances of the case.[69] [68][2000] QCA 178.[69][2000] QCA 178, [2]. On 10 November 2017, disclosure was made by the second defendant when documents from a Notice of Non-Party Disclosure were delivered to the plaintiff’s office at the request of the second defendant. In Smiley v Watson,[70] it was held obtaining a document by way of proceedings for non-party disclosure was not a step in the proceedings; analogy was drawn to the taking of a statement of evidence from a non-party. The plaintiff notes that if the second defendant had requested the records be delivered to itself, rather than the plaintiff, the second defendant would then have had to disclose the records to the plaintiff, which would have constituted a step in the proceedings.[71] The plaintiff submits this would have been the ‘usual course’.[72] However, I accept the argument of the plaintiff that but for this unusual course, a step would have been taken at that time. It is arguable that by having the documents delivered directly to the plaintiff, the second defendant thereby disclosed them to the plaintiff. However, in my view, as the second defendant never received the documents their obligation to disclose them was not enlivened. In any event, I consider the last step take in the action was the filing of the Notices of Contribution by the second defendant on 8 December 2016.[70][2002] 1 Qd R 560; Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, [47].[71]Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272.[72]Plaintiff’s submissions, [10(f)].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Drane v Barolin Tower Pty Ltd & Ors [2020] QDC 275
PARTIES:	MATTHEW NEVILLE DRANE (plaintiff) v BAROLIN TOWER PTY LTD ACN 097 673 508 (first defendant) and OTIS ELEVATOR COMPANY PTY LTD ACN 002 873 065 (second defendant) and SYLVAN DEVELOPMENTS PTY LTD TRADING AS CORAL COAST REALTY ACN 071 859 982 (third defendant) and RANECORP PTY LTD TRADING AS CBD REALTY ACN 127 623 125 (fourth defendant)
FILE NO:	BD 1688 of 2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	2 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2020
JUDGE:	Rinaudo AM DCJ
ORDER:	Application allowed
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where the plaintiff commenced a claim seeking damages for personal injuries in May 2016 – where there has been no step taken in the proceedings since December 2016 – where the plaintiff makes application to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) – where – the delay is solely attributable to the plaintiff’s solicitors and barrister rather than the plaintiff – where the circumstances replied upon by the plaintiff satisfy the non-exhaustive list of factors in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178.
LEGISLATION:	Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
CASES:	Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dempsey v Dorber [1990] 1 Qd R 418 Hoy & McCormack v Honan & Anor [1997] QCA 250 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited (1999) QSC 372 Smiley v Watson [2002] 1 Qd R 560 The President‘s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor [2019] QSC 209 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Quinlan v Rothwell [2002] 1 Qd R 647 Wilson v Bynon [1984] 2 Qd R 83
COUNSEL:	JP Kimmins for the plaintiff AG Rae for the first, second and third defendants BJ Heath for the fourth defendant
SOLICITORS:	Shine Lawyers for the plaintiff Clyde & Co for the first defendant King & Wood Mallesons for the second defendant Finemore Walters & Story for the third defendant Carter Newell for the fourth defendant