Field v Luxor Products Pty Ltd - [2009] QSC 218

SUPREME COURT OF QUEENSLAND

CITATION:

Field v Luxor Products Pty Ltd & Anor [2009] QSC 218

PARTIES:

MARK ANTHONY FIELD trading as M & N WATERPROOFING & RESTORATION SERVICES (BN 6535811)

(plaintiff/applicant)

v

LUXOR PRODUCTS PTY LTD ACN 002 301 886

(first defendant/first respondent)

AND

GABR SAYED ELGAFI

(second defendant/second respondent)

FILE NO:

BS 10122 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2009

JUDGE:

P Lyons J

ORDER:

1. The claim is dismissed for want of prosecution

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the plaintiff is in default due to a failure to comply with previous court orders on a number of occasions – where the defendant seeks an order that the action be dismissed for want of prosecution – where there was a lack of credible explanation for the delay – Consideration of r 5 Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff is entitled to commence fresh proceedings after the action has been dismissed while the plaintiff’s claim is still within limitation periods.

Trade Practices Act 1974 (Cth), ss 74G; 74J
Uniform Civil Procedure Rules 1999 (Qld), rr 5; 444

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, considered.
Arc Holdings Pty Ltd v Riana Pty Ltd & Another [2008] QSC 191, mentioned
Birkett v James [1978] AC 297, considered
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, considered
Cooper v Hopgood & Ganim [1999] Qd R 113, applied
Ketteman v Hansel Properties [1987] 1 AC 189, considered
Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Piconev AGC (Advances) Limited (1990) 98 ALR 100, followed
Logicrose Ltd v Southend United Football Club, unreported, Chancery Division, 5 February 1988, mentioned
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, considered
Mango Boulevard Pty Ltd v Spencer& Ors [2008] QCA 274, considered
Quinlan v Rothwell & Anor [2001] QCA 176, considered
Re Jokai Tea Holdings Ltd (1992) 1 WLR 1196, followed
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2008] QCA 224, considered
Tolley v Morris [1979] 1 WLR 592, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, considered

COUNSEL:

D North SC with P J Hay for the plaintiff/applicant

A Crowe SC for the defendants/respondents

SOLICITORS:

Mason Black Lawyers for the plaintiff/applicant

Piper Alderman for the defendants/respondents

[1] J: P LyonsThe plaintiff has, again, failed to comply with an order of the Court requiring it to take an action by a specified date. It seeks a variation of that order, and further directions. The defendants seek an order that the action be dismissed for want of prosecution.

The litigation

[2] The claim arises out of cleaning work performed by the plaintiff on tiles in a residence…

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: [2009] QSC 218
Decision Date: 10 August 2009

CaseChat Overview and Summary

The case before the court was an application by the defendant, Luxor Products Pty Ltd, to have the proceedings brought by the plaintiff, Field, dismissed for want of prosecution. The plaintiff had failed to comply with several court orders, resulting in the defendant's application for dismissal. The case was heard in the District Court of Queensland. The primary legal issue for the court to determine was whether the plaintiff's failure to comply with court orders justified the dismissal of the proceedings under rule 5 of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court had to consider whether the plaintiff was entitled to re-initiate the proceedings given that the claims were still within the limitation periods.

The court found that the plaintiff had been in default due to multiple failures to comply with court orders without a credible explanation for the delays. The court emphasised the importance of adherence to procedural requirements and the need for litigants to act promptly and responsibly. The judge held that the plaintiff's conduct warranted the dismissal of the proceedings. The court also noted that, while the plaintiff's claims were still within the limitation periods, the plaintiff was not entitled to re-initiate the proceedings without first addressing the reasons for the previous failures to comply with procedural obligations. The court concluded that the dismissal was appropriate given the lack of credible explanation and the repeated failures to comply with the court's orders.

The court dismissed the plaintiff's claim for want of prosecution. The plaintiff was not entitled to commence fresh proceedings without addressing the reasons for the previous defaults. The judge ordered that the proceedings be dismissed and made no order as to costs.

Orders

Orders of the court

1. The claim is dismissed for want of prosecution

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:	Field v Luxor Products Pty Ltd & Anor [2009] QSC 218
PARTIES:	MARK ANTHONY FIELD trading as M & N WATERPROOFING & RESTORATION SERVICES (BN 6535811) (plaintiff/applicant) v LUXOR PRODUCTS PTY LTD ACN 002 301 886 (first defendant/first respondent) AND GABR SAYED ELGAFI (second defendant/second respondent)
FILE NO:	BS 10122 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2009
JUDGE:	P Lyons J
ORDER:	1. The claim is dismissed for want of prosecution
CATCHWORDS:	PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the plaintiff is in default due to a failure to comply with previous court orders on a number of occasions – where the defendant seeks an order that the action be dismissed for want of prosecution – where there was a lack of credible explanation for the delay – Consideration of r 5 Uniform Civil Procedure Rules 1999 (Qld) – whether the plaintiff is entitled to commence fresh proceedings after the action has been dismissed while the plaintiff’s claim is still within limitation periods. Trade Practices Act 1974 (Cth), ss 74G; 74J Uniform Civil Procedure Rules 1999 (Qld), rr 5; 444 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, considered. Arc Holdings Pty Ltd v Riana Pty Ltd & Another [2008] QSC 191, mentioned Birkett v James [1978] AC 297, considered Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, considered Cooper v Hopgood & Ganim [1999] Qd R 113, applied Ketteman v Hansel Properties [1987] 1 AC 189, considered Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Piconev AGC (Advances) Limited (1990) 98 ALR 100, followed Logicrose Ltd v Southend United Football Club, unreported, Chancery Division, 5 February 1988, mentioned Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, considered Mango Boulevard Pty Ltd v Spencer& Ors [2008] QCA 274, considered Quinlan v Rothwell & Anor [2001] QCA 176, considered Re Jokai Tea Holdings Ltd (1992) 1 WLR 1196, followed The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2008] QCA 224, considered Tolley v Morris [1979] 1 WLR 592, cited Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, considered
COUNSEL:	D North SC with P J Hay for the plaintiff/applicant A Crowe SC for the defendants/respondents
SOLICITORS:	Mason Black Lawyers for the plaintiff/applicant Piper Alderman for the defendants/respondents