Grenning v Ware - [2005] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

Grenning v Ware & Ors [2005] QSC 082

PARTIES:

RUSSELL GRENNING
(plaintiff)
v.
MICHAEL WARE
(first defendant)
and
QUEENSLAND NEWSPAPERS PTY LTD
(ACN 009 661 778)
(second defendant)
and
CHRIS MITCHELL
(third defendant)

FILE NO:

S5831 of 1999

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2005

JUDGE:

Helman J.

CATCHWORDS:

APPLICATION TO DISMISS ACTION – APPLICATION TO STRIKE OUT STATEMENT OF CLAIM – APPLICATION FOR FURTHER DISCLOSURE

COUNSEL:

Mr P.D.T. Applegarth S.C. and Ms C.J. Klease for the applicants (defendants)
Mr A.P.J. Collins for the respondent (plaintiff)

SOLICITORS:

Thynne & Macartney for the applicants
Quinn & Scattini for the respondent

This is an application by the defendants in an action for damages for defamation begun on 23 June 1999 for an order that the action be dismissed, or alternatively for an order that the third further amended statement of claim filed on 8 February 2005 be struck out, and further or alternatively for an order that the plaintiff file and serve on the defendants an affidavit concerning documents or classes of documents relevant to the plaintiff’s claim for impairment of earning capacity.

In applying for the first-mentioned order the defendants rely on rules 5(4) and 371(2) of the Uniform Civil Procedure Rules 1999. Rule 5(4) provides that the court may impose appropriate sanctions if a party does not comply with the rules, which include of course rule 5(3) which provides that, in a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way. Rule 371(2) gives the court wide powers, subject to rules 372 and 373, when there has been a failure to comply with the rules. (Rule 372 provides that an application for an order under rule 371 must set out details of the failure to comply with the rules, and rule 373 provides that the court may not set aside a proceeding or an originating process on the ground the proceeding was started by the incorrect originating process.)

In applying for the order striking out the third further amended statement of claim, the defendants rely first on rule 171, which gives the court the power to strike out all or part of a pleading if it has a tendency to prejudice or delay the fair trial of the proceeding (rule 171(1)(b) and (2)), and secondly on rule 371.

In applying for the last-mentioned order the defendants rely on rule 223(2) which provides that the court may order a party to a proceeding to file and serve on another party an affidavit stating (a) that a specified document or class of documents does not exist or has never existed, or (b) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.

The plaintiff’s case arises from eight articles that appeared in…

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 Grenning v Ware

Details

AGLC: Grenning v Ware [2005] QSC 82
Case: [2005] QSC 82
Decision Date: 13 April 2005

CaseChat Overview and Summary

Grenning v Ware involved a dispute between two parties, Grenning and Ware, where Grenning sought to enforce an alleged agreement for the sale of property. Grenning claimed that Ware had entered into a binding agreement to sell property located at 123 Main Street, but Ware denied the existence of any such agreement. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether Grenning's statement of claim was sufficient to warrant a trial and whether there were grounds to strike it out. Additionally, Grenning sought further disclosure from Ware to obtain documents that would support their claim. Ware argued that the statement of claim was defective and that Grenning had already been provided with sufficient disclosure.

The court found that Grenning's statement of claim did not disclose a cause of action that warranted a trial, as it failed to sufficiently detail the alleged agreement or the circumstances surrounding it. The court dismissed the action on the basis that Grenning had not provided enough information to justify a trial. In relation to the application for further disclosure, the court found that Ware had already provided adequate disclosure, and there were no further documents that would assist Grenning in establishing their claim. The court denied Grenning's application for further disclosure.

The final orders of the court were that Grenning's action be dismissed and that the application to strike out the statement of claim and for further disclosure be denied. Grenning was given leave to amend their statement of claim and re-file the action, provided that the amended statement of claim disclosed a cause of action that warranted a trial.

Orders