Hedges v Pointing - [2008] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:	Hedges & Anor v Pointing [2008] QDC 244
PARTIES:	GRAHAM ERNEST POINTING
(Plaintiff/ Respondent) -v-
GRAHAM ARTHUR HEDGES
(First Defendant/ Applicant) and
THE STATE OF QUEENSLAND
(Second Defendant/ Applicant)
FILE NO/S:	5021 of 1999
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application
ORIGINATING
COURT:	District Court Brisbane
DELIVERED ON:	9 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2008
JUDGE:	Collins ADCJ
ORDER:	Application Dismissed. Parties to bear their own costs.
CATCHWORDS:	Practice – want of prosecution – where there had been significant delay
Cooper v Hopgood & Ganim [1999] 2 Qd R 13; Tyler v Custom Credit Corporation & Ors [2000] QCA 178; Butler v Simmonds Crowley & Galvin [1999] QCA 475 Quinlan v Rothwell [2002] 1 Qd R 647; Bendeich v Clout [2003] QDC 305; HSU v Wang & Ors [2004] QSC 324; McDowell v Reynolds [2002] QSC 142; Hood & Anor v State of Queensland & Ors [2002] QSC 169; Page v Central Queensland University [2006] QCA 478
COUNSEL:	K. Philipson for the applicant V. D. Edwards for the respondents
SOLICITORS:	Crown Solicitor for the applicants Bradley Munt and Co for the respondent

The first and second defendants (’the applicants’) brought an application to strike out the claim of the Respondent pursuant to s 280 of the Uniform Civil Procedure Rules 1999 [“UCPR”] and in the alternative application pursuant to r 5 of the UCPR.
On the morning of the hearing, the applicants amended their application to an application pursuant to s 85(2) of the Supreme Court of Queensland Act 1991 to dismiss the action for want of prosecution asserting that there had been a delay in excess two years since the last step was taken in the proceeding.

Background

Graham Ernest Pointing (‘the respondent’) was charged with offences under the Weapons Act 1996 after Graham Arthur Hedges (‘the First defendant’) a Police Officer laid “an information” in the Magistrates Court Brisbane on or about 17 February 1999.
The respondent was a firearms dealer and armourer. The charges arose out of his taking possession of a mortar and and a number of live mortar rounds from a military historical society.
On 19 October 1999, the charges were dismissed after the police prosecutor offered no evidence (“NETO”) in the Magistrates Court at Chinchilla.
On 22 December 1999 a claim was filed in the District Court Registry at Brisbane claiming damages for malicious prosecution against the applicants.
The applicants have filed notices of an intention to defend.
The respondent claims compensatory damages, exemplary damages and aggravated damages.
In Butler v Simmonds Crowley & Galvin [1999] QCA 475 the Court of Appeal identified the elements which need to be proven in an action for malicious prosecution:

[17] The claim in the writ is "unspecified damages resulting from malicious prosecution by the
defendant". The elements of the cause of action known as the tort of malicious prosecution are
conveniently set out in Halsbury's Laws of England and may be conveniently summarised as

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 Hedges v Pointing

Details

AGLC: Hedges v Pointing [2008] QDC 244
Case: [2008] QDC 244
Decision Date: 9 October 2008

CaseChat Overview and Summary

Hedges v Pointing is a case before the court involving a dispute over the want of prosecution in a legal action. The plaintiff, Hedges, filed a claim and statement of claim in December 1999 following charges being dismissed in October of the same year. The events in question occurred nearly a decade prior to the filing, and the plaintiff has yet to amend the original claim and statement of claim. The primary issue before the court was whether the plaintiff's case should be dismissed due to the delay in prosecution. The court considered the factors outlined by Atkinson J in Tyler v Custom Credit Corporation Limited & Ors [2000] QCA 178, which include the length of the delay, the reason for the delay, and whether the respondent has been prejudiced by the delay.

The court found that while the plaintiff commenced the action promptly, there had been significant delays in the proceedings. The plaintiff had not sought summary judgment but had failed to respond to requests for further and better particulars. The plaintiff's case was deemed ambitious with uncertain prospects of success, particularly given the difficulty in proving malicious prosecution and the absence of reasonable and probable cause. The court noted that there were attempts to engage the respondent, but no previous applications to the court, and no evidence of court orders being ignored or disobeyed. The plaintiff's Counsel argued that the applicants were responsible for the delay, but the court found limited evidence to support this claim and little significance in the assertion that the delays were due to the respondent being impecunious.

After considering the evidence and the factors outlined in Tyler, the court determined that the plaintiff was primarily responsible for the delays in the case. Despite this, the court decided not to strike out the claim. Instead, the court dismissed the application, with both parties to bear their own costs. The court's decision highlighted the importance of diligence in legal proceedings and the potential consequences of delays, while also acknowledging the plaintiff's right to pursue their claim.

Orders

Orders of the court

Application Dismissed. Parties to bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue before me is whether the action of the plaintiff should be brought to an early end because of this delay. In Tyler v Custom Credit Corporation Limited & Ors [2000] QCA 178 Atkinson J set out the factors a court needs to take into account in determining whether the interest of justice required that a case be dismissed. The charges were dismissed in October 1999 and the Claim and Statement of Claim were filed in December 1999. The events occurred almost ten years ago but the action was commenced promptly and there has been no amendment to the original claim and statement of claim. The events which give rise to the action involve a police investigation and it is reasonable to anticipate that the applicants will have access to thorough documentation and notes. It is difficult to accurately ascertain the respondent’s prospects of success. The applicants have not sought summary judgement, however, their requests for further and better particulars remain unanswered and it maybe that such an application may be made when those particulars are provided. At paragraph 9 above the matters to be proven by the plaintiff are set out. Assuming that a prosecution which was discontinued after no evidence was offered is sufficient to amount to “a prosecution terminated in the plaintiff’s favour”, the respondent still needs to prove that the applicants carried out the prosecution maliciously and that there was an absence of reasonable and probable cause. In his affidavit the respondent indicates that he has a tape recording of a conversation between himself and a commissioned officer of police who indicates that the respondent “had been set up”. While it is not possible to make any thorough assessment of the meaning of those words put at its highest, this evidence might lend some weight to the respondent’s claim. On balance I am of the view that the case is an ambitious one with far from strong prospects of success. There have been numerous attempts by the applicants to engage the attention of the respondent by way of Rule 444 letters but there have been no earlier applications to the court and it cannot be said that Court orders have been ignored or disobeyed. There has been significant delay. There is nothing on the material to support the submission made by the respondent’s Counsel that the applicants are to blame for the delay. There is limited material before me to support the assertion that the delays are due to the respondent being impecunious. The only material is in Dr O’Brien’s letter attached to the affidavit of Mr. Munt. I place little significance upon that assertion. Should the claim be struck out the matter would be at an end. Mr Munt has confessed that he could have been more diligent in pursuing this matter. On my reading of the material, it seems that there is a body of evidence which would seem to suggest that Mr Munt has been responsible significantly for the delays in the case. My view is that the preponderance of the blame for the delay lies with Mr. Munt.