Haddad v Torbey

[2005] QSC 261

SUPREME COURT OF QUEENSLAND

CITATION:

Haddad v Torbey [2005] QSC 261

PARTIES:

JOHN HADDAD
(plaintiff/respondent)
v
ANTHONY TORBEY
(defendant/applicant)

FILE NO/S:

BS 772 of 1997

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2005

JUDGE:

Holmes J

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the proceedings were  commenced over eight years ago - where plaintiff had not failed to take a step in the proceeding and had not failed to comply with an order of the court -  where claim for damages for professional negligence - whether, in the exercise of the court’s inherent jurisdiction, proceedings should be struck out for want of prosecution

Uniform Civil Procedure Rules 1999 (Qld), r 5

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood & Ganim [1999] 2 Qd R 113

MacDonnell v Rolley& Ors [2000] QSC 58

COUNSEL:

Mr M T Brady for the defendant/applicant

Mr P J Favell for the plaintiff/respondent

SOLICITORS:

Phillips Fox for the defendant/applicant

Jones Leach Hawley for the plaintiff/respondent

1. HOLMES J: The defendant in this proceeding seeks to have it struck out for want of prosecution.  He does not contend that the plaintiff has failed to take any step required by the Uniform Civil Procedure Rules 1999, nor that he has failed to comply with any court order. Instead, he brings his application in the court’s inherent jurisdiction, with reliance on rule 5 which emphasises the need for expeditious resolution of the issues in proceedings.

Background

1. In the proceeding, the plaintiff alleges negligence against the defendant, a solicitor, who acted for him on a lease agreement. (The defence was not read on this application, but I infer that any negligence is denied.) The plaintiff claims that a term in an agreement to lease, the importance of which he had emphasised to the defendant, was not included in the lease which he ultimately signed. He proposed to use the leased premises for a take-away food outlet, and the term (the “exclusivity provision”) was to the effect that no other take-away would be allowed to open in the shopping centre. His business suffered when a competitor opened up in adjacent premises. 

1. In his amended statement of claim, the plaintiff advances alternative scenarios, in which, if the lessor had agreed to the inclusion of the exclusivity provision, the business would have run without competition; or if the provision had been refused, the plaintiff would have obtained other premises; or if such premises were not available, he would have given up the idea of running a business and returned to computer programming studies with a view to a career in that field.  (In fact, having sold his business in 1997, he did take that path.)  Those scenarios raise complexities for the assessment of quantum, so that the parties have needed to obtain expert accounting evidence. That…