Evans v Dangerfield & Logan City Council

[2001] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:              Evans v Dangerfield and Logan City Council [2001] QSC

117

PARTIES:                 DON EVANS

(plaintiff)

v

JODI DANGERFIELD

(first defendant)

and

LOGAN CITY COUNCIL

(second defendant)

FILE NO:                  S11750 of 1998

DIVISION:               Trial Division

DELIVERED ON:    18 April 2001

DELIVERED AT:     Brisbane

HEARING DATE:     21 February 2000

JUDGE:  Mackenzie J

ORDER:1.  A notice of discontinuance signed by the first defendant be dispensed with;

2.  The costs of the application be costs in the cause.

CATCHWORDS:       PROCEURE  –  QUEENSLAND  –  PRACTICE  UNDER RULES OF COURT – DISCONTINUANCE – an application on the papers – where first defendant cannot be located – whether in the circumstances the prescribed form that both defendants sign notice of discontinuance be dispensed with – costs in the cause.

Uniform Civil Procedure Rules r 304(1) SOLICITORS:  Amarandos & Company Solicitors for the plaintiff

Corrs Chambers Westgarth for the second defendant

[1]     MACKENZIE  J:    This  was  an  application  on  the  papers  in  connection  with proposed discontinuance by the plaintiff against both defendants.  A notice of discontinuance  signed  by  the  solicitors  for  the  plaintiff  was  forwarded  to  the solicitors for the defendants.  When the matter originally came on before me on 6

December 2000, I caused inquiries to be made by telephone concerning service of the  application  on  the  first  defendant  who  had  not  signed  the  notice  of discontinuance.

[2]     The  affidavit  filed  on  23  March  2001,  which  was  conveyed  to  my  chambers recently, indicates that the first defendant cannot be located despite appropriate searches being made.

2

[3]     It  is  the  plaintiff's  intention  to  discontinue  the  proceedings.  As  the  written submissions  point  out,  there  is  no  assurance  that  the  first  defendant  has  been properly served with or has any notice of the initiating proceedings.  There is no reason to suppose that she will be prejudiced in any way by the course proposed.

[4]     The case appears to fall within r 304(1).  However the prescribed form envisages that both defendants will consent to the discontinuance.  The claim will remain on the record if notice of discontinuance is not filed.  Accordingly, in my view it is appropriate to dispense with the signing of the notice of discontinuance by the first defendant in all of the circumstances.

[5]     As to costs, the meagre information in the writ itself does not make it plain that there is any vicarious liability or other direct connection between the first defendant and the second defendant.  Although my initial impression was that an order of no order as to costs might be appropriate, I have on reflection come to the conclusion that the order proposed in the application is that which should be made.  I therefore order that:

1.          A notice of discontinuance signed by the first defendant be dispensed with;

2.          The costs of the application be costs in the cause.