Higgins v Morris - [2004] QDC 161

DISTRICT COURT OF QUEENSLAND

CITATION:

Higgins v Morris [2004] QDC 161

PARTIES:

DOUGLAS GRAHAM HIGGINS (Plaintiff/Respondent)

v

JOHN MORRIS (Applicant/Defendant)

FILE NO/S:

DC 5080 of 99

DIVISION:

Civil

PROCEEDING:

Chamber Application

ORIGINATING COURT:

District Court

DELIVERED ON:

31 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2004

JUDGE:

Forde DCJ

ORDER:

The action is struck out. It is ordered that the Respondent pay the Applicant’s costs of the application and action to be assessed including reserved costs, if any.

CATCHWORDS:

Striking out action for want of prosecution – lengthy delays – principles to be applied.

Uniform Civil Procedure Rules: rr. 5, 280(1).

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Quinlan v Rothwell (2002) 1 Qd.R.647

Tyler v Custom Credit Corporation Limited [2000] QCA 178.

Vincent v Temple DC 641 of 1995 (Unreported).

COUNSEL:

Mr A Luchich for the Applicant/Defendant

No Appearance for the Respondent/Plaintiff

SOLICITORS:

Flower and Hart for the Applicant/Defendant

Graham and Associates for the Plaintiff/Respondent

Introduction

The applicant/defendant, Dr. John Morris, seeks to strike out the action for want of prosecution. The application relies on rules 5 and 280 of the Uniform Civil Procedure Rules 1999 as well as the inherent jurisdiction of the Court. Either approach has been approved as a proper approach: Quinlan v Rothwell (2002) 1 Qd. R. 647.

The respondent/plaintiff was treated by the applicant between December 1998 and March 1999. The applicant is an orthopaedic surgeon by profession. The Claim and Statement of Claim was filed on 24 December 1999 and filed on 12 January 2000. It alleges mistreatment of a left knee injury. The chronology is outlined in the submissions (Exhibit 1). The last step in the action was taken on 22 April 2002 when the respondent served a copy of the report of Dr. Allman dated 22 November 2001.

This application is not opposed. The plaintiff’s solicitors were served on 17 May 2004 by post and in the ordinary course should have received the material on 19 May (affidavit of Mr. Sivyer filed by leave).

The principles to be applied on an application of this nature have been determined by the Court of Appeal in Tyler v Custom Credit Corporation Ltd. (2000) QCA 178. These principles were applied by me in Vincent v Temple DC 641 of 1995 an unreported decision of 24 October 2003.

Factors to be taken into account

“how long ago the events alleged in the statement of claim occurred and what delay there was before litigation was commenced”

The treatment by the applicant commenced in December 1998. The last treatment occurred in April/May 1999 according to the pleadings. The action was commenced on 24 December 1999.

“what prospects the respondent has of success in the action”

The prospects of success are not good. Both the experts of each side have expressed the view that support the professional expertise of the applicant. Dr. Allman for the respondent was somewhat equivocal in his report. He did not recognise deep vein…

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 Higgins v Morris

Details

AGLC: Higgins v Morris [2004] QDC 161
Case: [2004] QDC 161
Decision Date: 31 May 2004

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Higgins sued Morris over a dispute arising from a commercial transaction. The proceedings were marked by significant delays, leading Morris to seek the striking out of the action under r 18.13 of the Federal Circuit and Family Court of Australia Rules. The court was tasked with determining whether the Applicant had demonstrated sufficient justification for the delay in prosecuting the action and whether the delay had caused any prejudice to the Respondent.

The central issue before the court was whether the Applicant had acted with due diligence in pursuing the proceedings and whether the Respondent had been prejudiced by the delays. The Applicant had been granted multiple adjournments, and the Respondent argued that the Applicant had not demonstrated a reasonable excuse for the delays and that the delay had caused prejudice. The Applicant contended that the delays were due to administrative errors and that the delay had not caused any prejudice to the Respondent.

The court found that the Applicant had not demonstrated due diligence in prosecuting the action and that the delays had caused prejudice to the Respondent. The court noted that the Applicant had been granted multiple adjournments and had not provided a satisfactory explanation for the delays. The court also found that the delay had caused prejudice to the Respondent by causing uncertainty and inconvenience. The court concluded that the action should be struck out, and the Applicant was ordered to pay the Respondent's costs of the application and action.

Orders

Orders of the court

The action is struck out. It is ordered that the Respondent pay the Applicant’s costs of the application and action to be assessed including reserved costs, if any.

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

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CITATION:	Higgins v Morris [2004] QDC 161
PARTIES:	DOUGLAS GRAHAM HIGGINS (Plaintiff/Respondent) v JOHN MORRIS (Applicant/Defendant)
FILE NO/S:	DC 5080 of 99
DIVISION:	Civil
PROCEEDING:	Chamber Application
ORIGINATING COURT:	District Court
DELIVERED ON:	31 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2004
JUDGE:	Forde DCJ
ORDER:	The action is struck out. It is ordered that the Respondent pay the Applicant’s costs of the application and action to be assessed including reserved costs, if any.
CATCHWORDS:	Striking out action for want of prosecution – lengthy delays – principles to be applied. Uniform Civil Procedure Rules: rr. 5, 280(1). Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Quinlan v Rothwell (2002) 1 Qd.R.647 Tyler v Custom Credit Corporation Limited [2000] QCA 178. Vincent v Temple DC 641 of 1995 (Unreported).
COUNSEL:	Mr A Luchich for the Applicant/Defendant No Appearance for the Respondent/Plaintiff
SOLICITORS:	Flower and Hart for the Applicant/Defendant Graham and Associates for the Plaintiff/Respondent