Hsu v Wang

[2004] QSC 324

SUPREME COURT OF QUEENSLAND

CITATION:

Hsu & Ors v Wang & Ors [2004] QSC 324

PARTIES:

CHING-CHUN HSU
(first plaintiff)
and
SHEN-SU-CHEN HSU
(second plaintiff)
and
UNIC AUSTRALIA PTY LTD
(third plaintiff)
and
MUSODEEN PTY LTD
(fourth plaintiff)
v
YEH-SHING WANG (also known as Steven Wang)
(first defendant)
and
WEN-HE WANG
(second defendant)
and
YEH-LUNG WANG
(third defendant)
and
BEHARA CHARLES AKKARI
(fourth defendant)
and
ORIEL HOMES PTY LTD
(fifth defendant)
and
WAYNE STUART BROWN
(sixth defendant)
and
YING-HWA WANG
(seventh defendant)
and
MARK ALEXANDER O'BRIEN
(eight defendant)
and
MING LI WANG
(ninth defendant)
and
CHIEN-CHAN TAN
(tenth defendant)
and
HSIN-LI WANG
(eleventh defendant)
and
SHU-EANG CHENG
(twelfth defendant)
and
YUAN-HIS WANG
(thirteenth defendant)

FILE NO:

WRT612 of 1993

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2004 & 1 September 2004

JUDGE:

Wilson J

ORDER:

1.      That the application for leave to proceed be dismissed.

2.      That the application to dismiss for want of prosecution be allowed.

3.      That the plaintiffs pay the eighth defendant's costs of and incidental to the proceeding including reserved costs, if any, and including the costs of these two applications, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – where last step in the proceeding was taken two and a half years ago – where there has been a change of solicitors – whether leave to proceed will be granted

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where 12 to 15 years have passed since the events giving rise to claim – where there have been delays and inadequacies in the plaintiffs’ pleadings – whether delay in prosecution led to prejudice because of deterioration of quality of evidence – whether such prejudice would prevent a fair trial

Uniform Civil Procedure Rules 1999 (Qld) r5, r389(2)

Birkett v James [1978] AC 297, considered
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Cooper v Hopgood and Ganim [1999] 2 QdR 113, considered
Dempsey v Dorber [1990] 1 QdR 418, applied
Tyler v Custom Credit Corporation Ltd [2000] QCA 178

Bjelica Investments Pty Ltd v TC Waters Pepper & Co Pty Ltd [2003] NTSC 67

COUNSEL:

RJ Anderson for the plaintiff
SG Clothier for the eighth defendant

SOLICITORS:

for the applicant plaintiff
for the eighth defendant

1. JWILSON:   This proceeding was commenced by writ issued on 23 April 1993.  The plaintiffs sued a number of defendants however the proceeding is now live against only the eighth defendant Mark Alexander O'Brien who is a solicitor.  The last step in the proceeding was taken two and a half years ago in February 2002. 

1. The plaintiffs seek leave to proceed pursuant to rule 389(2) of the UCPR, which provides that if no step has been taken in a proceeding for two years from the…