Driscoll v DM Developments P/L - [2012] QMC 26

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Driscoll v DM Developments P/L [2012] QMC 26

PARTIES:

LEIGH JOHN DRISCOLL

(plaintiff/ respondent)

v

D M DEVELOPMENTS PTY LTD

(defendant/ applicant)

FILE NO/S:

M1328/12

DIVISION:

Magistrates Courts

PROCEEDING:

Application to stay proceeding

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

10 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2012

MAGISTRATE:

Springer BL

ORDER:

1. Pursuant to Rule 16(g), this proceeding is stayed.

2. The plaintiff/respondent pay the defendant/applicant’s costs of and incidental to the application and the proceeding in an amount to be agreed, failing agreement to be determined by me following receipt of written submissions as to the basis of, and quantum of costs, which submissions are to be filed and served not later than 27 July 2012.

CATCHWORDS:

CIVIL LAW – PRACTICE AND PROCEDURE - application to stay proceeding as an abuse of process – whether it is an abuse of process to make a claim that has been previously dismissed for failure to comply with directions

COUNSEL:

SOLICITORS:

Background

On 3 September 2009 the defendant DM Developments Pty Ltd (DMD) filed a claim and statement of claim in the Magistrates Court at Beenleigh seeking $27,200 from Lee John Driscoll as unpaid rent. On 12 April 2010 the appellant filed a notice of intention to defend, defence and a counterclaim seeking $131,790.98 as money owing pursuant to an employment agreement and a further agreement quantifying the amount outstanding; it was alleged that the defendant occupied the premises the subject of the claim pursuant to the employment agreement.

On 12 October 2010 Mr Driscoll’s application to set aside an earlier order for disclosure was dismissed. On that same date, DMD’s application for dismissal of Mr Driscoll’s counter-claim resulted in further orders for disclosure, in default of which judgment was to be entered for DMD. On 30 November 2010 a Deputy Registrar signed a judgment that Mr Driscoll (the plaintiff in this court and the defendant in the Beenleigh proceedings) pay DMD $27,200 and that the counterclaim be dismissed because of Mr Driscoll’s failure to comply with the order of Magistrate McDougall dated 12 October 2010.

On 3 February 2011, an application to set aside that judgment was dismissed by Magistrate Hutton. Mr Driscoll appealed against the decision of 3 February 2011; his appeal was unsuccessful in the District Court before McGill J (Driscoll
v DM Developments Pty Ltd [2011] QDC delivered 14 December 2011.

The current application

The defendant DMD applies pursuant to Rule 16(g) of the Uniform Civil Procedures Rules for the proceeding to be stayed. Although the application was couched more widely in its original form, as I understood the defendant’s counsel, the defendant company only pursues that part of the application relating to Rule 16(g), which reads:

The Court may –
…
(g) stay a proceeding; …

The application also sought costs of and incidental to the application to be assessed on an indemnity basis. The main thrust of submissions before the Court related to whether or…

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 Driscoll v DM Developments P/L

Details

AGLC: Driscoll v DM Developments P/L [2012] QMC 26
Case: [2012] QMC 26
Decision Date: 10 July 2012

CaseChat Overview and Summary

The applicant, DM Developments P/L, applied to the Court for an order to stay the proceeding brought by the plaintiff, Driscoll, on the basis that it was an abuse of process. The plaintiff had previously brought proceedings against the applicant which were dismissed for failure to comply with directions. The plaintiff subsequently brought the current proceeding, which the applicant sought to have stayed. The Court was required to determine whether it was an abuse of process for the plaintiff to bring the current proceeding after the previous proceeding was dismissed for failure to comply with directions.

The Court considered the nature and purpose of the abuse of process doctrine, which is to prevent the misuse of legal process for an improper purpose. The Court held that where a claim has been dismissed for failure to comply with directions, it may be an abuse of process to bring the same or substantially the same claim again, particularly where there has been no change in the circumstances or evidence. The Court found that in this case, the plaintiff had brought the current proceeding without any significant change in circumstances or evidence, and had previously been warned about bringing vexatious claims. The Court held that it was an abuse of process for the plaintiff to bring the current proceeding, and granted the application to stay the proceeding.

The Court ordered that the proceeding be stayed and that the plaintiff pay the defendant’s costs of and incidental to the application and the proceeding. The amount of costs was to be agreed between the parties, and if they were unable to agree, the Court would determine the costs following receipt of written submissions from the parties.

Orders

Orders of the court

1. Pursuant to Rule 16(g), this proceeding is stayed.

2. The plaintiff/respondent pay the defendant/applicant’s costs of and incidental to the application and the proceeding in an amount to be agreed, failing agreement to be determined by me following receipt of written submissions as to the basis of, and quantum of costs, which submissions are to be filed and served not later than 27 July 2012.

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

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CITATION:	Driscoll v DM Developments P/L [2012] QMC 26
PARTIES:	LEIGH JOHN DRISCOLL (plaintiff/ respondent) v D M DEVELOPMENTS PTY LTD (defendant/ applicant)
FILE NO/S:	M1328/12
DIVISION:	Magistrates Courts
PROCEEDING:	Application to stay proceeding
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	10 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2012
MAGISTRATE:	Springer BL
ORDER:	1. Pursuant to Rule 16(g), this proceeding is stayed. 2. The plaintiff/respondent pay the defendant/applicant’s costs of and incidental to the application and the proceeding in an amount to be agreed, failing agreement to be determined by me following receipt of written submissions as to the basis of, and quantum of costs, which submissions are to be filed and served not later than 27 July 2012.
CATCHWORDS:	CIVIL LAW – PRACTICE AND PROCEDURE - application to stay proceeding as an abuse of process – whether it is an abuse of process to make a claim that has been previously dismissed for failure to comply with directions
COUNSEL:
SOLICITORS: