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Kennedy v Griffiths

Kennedy v Griffiths

Case [2014] QSC 43 17 March 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

Kennedy and Anor v Griffiths and Anor [2014] QSC 43

PARTIES:

BRUCE JAMES KENNEDY
(first plaintiff)
BARBARA MARJORY HUNT
(second plaintiff)

v

PAMELA ANNE GRIFFITHS
(defendant)
IAN CHARLES GRIFFITHS

(respondent)

FILE NO/S:

1268 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

17 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2014

JUDGE:

Boddice J

ORDERS:

Leave is granted to the Plaintiffs to discontinue the application for contempt, conditioned on the Plaintiffs not bringing any further application for contempt, or any other court proceedings, based on the same or similar allegations the subject of the contempt application, without the leave of the Court;1.

There be no order as to costs.2.

CATCHWORDS

·       PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DISCONTINUANCE – where the Plaintiffs brought an application to punish the Defendant and Respondent for contempt – where the Plaintiffs sought leave to discontinue or withdraw the application for contempt at a late stage – where leave to discontinue or withdraw was opposed by the Defendant and Respondent – whether leave to discontinue or withdraw the application for contempt be granted – whether, if leave to discontinue or withdraw the application for contempt be granted, conditions to leave be imposed

·       PROCEDURE – COSTS – RECOVERY OF COSTS - where the Defendant and Respondent sought costs of the application on an indemnity basis – what order as to costs should be made

·       Uniform Civil Procedure Rules 1999 (Qld) rr 8, 304, 307, 367, 685, 926

Supreme Court of Queensland Act 1991 (Qld) s 85

ABN Amro Morgans Ltd v Alders & Ors [2008] QSC 160, cited

Blake v Norris (1990) 20 NSWLR 300, cited

Covell Matthews and Partners v French Bulls Ltd [1977] 1 WLR 876, applied

Fuller v Toms [2010] QCA 283, applied

Ibrahim v Peri Australia Pty Ltd [2013] NSWCA, applied

Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207, cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited

R v Deemal (2010) 2 Qd R 70, cited

Re Mempoll Pty Ltd [2013] NSWSC 301, distinguished

Re Sailport Pty Ltd [1992] 2 Qd R 395, applied

Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lae Qin (1997) 186 CLR 622, applied

Wickham v Bell Securities Pty Ltd [2006] QSC 167, cited

COUNSEL:

A J H Morris QC, with T W Quinn, for the plaintiffs

P J Davis QC, with Mr W Dietz, for the respondent

P G Lynch (sol), for the defendant

SOLICITORS:

Broadley Rees Hogan Lawyers, for the plaintiffs

Tucker and Cowen Solicitors, for the respondent

Lynch Andrews Lawyers, for the defendant

By application filed on 12 June 2013, the Plaintiffs sought orders that the Defendant and the Respondent be punished for contempt. The First Plaintiff and the Defendant are brother and sister.…

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 Kennedy v Griffiths

Details

AGLC: Kennedy v Griffiths [2014] QSC 43
Case: [2014] QSC 43
Decision Date: 17 March 2014

CaseChat Overview and Summary

In the matter of Kennedy v Griffiths, the Plaintiffs sought to punish the Defendant for contempt, which arose from an earlier proceeding. The case was before the court which was required to decide whether to allow the Plaintiffs to discontinue their application for contempt at a late stage, and if so, whether conditions should be imposed on such leave. The Defendant opposed the Plaintiffs' application to discontinue the contempt proceedings.

The court considered the principles governing the discontinuance of proceedings, particularly in the context of applications for contempt. It recognised that while the general rule is that a party may discontinue their proceedings at any time, there are exceptional circumstances where the court may impose conditions to safeguard the interests of the other party. The court acknowledged that the Defendant had a legitimate interest in finality and the prevention of harassment through repeated proceedings. However, the court also recognised the Plaintiffs' right to discontinue their application and the importance of flexibility in the management of the court's caseload.

In granting the Plaintiffs leave to discontinue the contempt application, the court imposed a condition that the Plaintiffs would not bring any further application for contempt, or any other court proceedings, based on the same or similar allegations without the leave of the court. This condition aimed to prevent repetitive litigation while allowing the Plaintiffs to discontinue their application. The court declined to order costs on an indemnity basis, considering the circumstances of the case.

The court's orders reflect a balanced approach to the discontinuance of proceedings in the context of contempt applications, taking into account the interests of both parties and the efficient management of the court's resources.

Orders

Orders of the court

Leave is granted to the Plaintiffs to discontinue the application for contempt, conditioned on the Plaintiffs not bringing any further application for contempt, or any other court proceedings, based on the same or similar allegations the subject of the contempt application, without the leave of the Court;1.

There be no order as to costs.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kennedy v Griffiths [2014] QSC 43

Most Recent Citation

SHOJAEI v DISNEY [2014] SADC 109

Cases citing this decision · 6 of 6 shown

Bellara Aged Care Village Pty Ltd v Serafini (No 2)
[2025] SASC 10 Para 14

…from bringing any further contempt proceedings based on the same or similar allegations without leave of the Court. [8] [2014] SADC 109. [9] [2014] QSC 43.…
Date of Judgment: 17 May 2024
[2024] HCASJ 18 Para 16

…imilar discretion has been exercised in other Australian courts.[3] [3]See, e.g., O'Neill v Mann [2000] FCA 1680 [11]-[13], [20]; Kennedy v Griffiths [2014] QSC 43 at [68]; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 at 688 [30], 692 [54]; Gibson v Minister for Home Affairs [2022] FCA…
Zelcliff Pty Ltd v Container Exchange (Qld) Ltd
[2022] QSC 239 Para 7

…e question of costs: Johnson v Clancy [2010] NSWSC 1301 [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224 [9]; Kennedy v Griffiths [2014] QSC 43 [66]; Rushbrook v Chalmers [2015] QSC 145 [19]. At the time of discontinuance, usually it will be impracticable to assess the eventual prospects of success in th…
WorkCover Queensland v Klinger Limited
[2022] QDC 201 Para 5

…e the question of costs: Johnson v Clancy [2010] NSWSC 1301, [21](f); see also Petavrakis v Hirst & Co [2001] QSC 224, [9]; Kennedy v Griffiths [2014] QSC 43, [66]; Rushbrook v Chalmers [2015] QSC 145, [19]. At the time of discontinuance, usually it will be impracticable to assess the eventual prospects of succe…
Fairfield Services Pty Ltd (in liq) v Leggett
[2020] QSC 183 Para 5

…ffs relied on Petavrakis v Hirst & Co [2001] QSC 224 at [34] (White J); Rathie v ING Life Ltd [2003] QSC 429 at [44] (Mullins J); Kennedy v Griffiths [2014] QSC 43 at [66] (Boddice J); and Rushbrook v Chalmers [2015] QSC 145 at [19] (Boddice J) in support of the proposition that the general principles in Lai Qin…
SHOJAEI v DISNEY
[2014] SADC 109 Para 44

…roceedings can be, to a large extent, alleviated by the imposition of conditions being imposed upon the leave to discontinue. See Kennedy v Griffiths [2014] QSC 43.…

View all 6 citing cases →

Cases cited in this decision · 14 of 14 shown

Ibrahim v PERI Australia Pty Ltd
[2013] NSWCA 328 Para 17

…[13][2013] NSWCA 328 at [17].…
In the matter of Mempoll Pty Ltd, Anankin Pty Ltd and Gold Kings Pty Ltd
[2013] NSWSC 301 Para 1

…lication had proceeded to a contested hearing, and an application for an adjournment to remedy evidentiary defects had been refused by the Court. [11][2013] NSWSC 301.…
Fuller v Toms
[2010] QCA 283 Para 1

…ubmit they will suffer injustice if leave is given. [1]See Covell Matthews and Partners v French Bulls Ltd [1977] 1 WLR 876, applied in Fuller v Toms [2010] QCA 283 at [25] per Fraser JA. [2] Uniform Civil Procedure Rule 1999 (Qld) r 310(1). [3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 5…
Mango Boulevard Pty Ltd v Spencer
[2010] QCA 207 Para 1

…il Procedure Rule 1999 (Qld) r 310(1). [3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207 at [90] per Fraser JA.…
R v Deemal
[2009] QCA 131 Para 1

…ceeding and another application. [4]See the observations of Smart J in Blake v Norris (1990) 20 NSWLR 300 at 306, adopted by Holmes JA in R v Deemal (2010) 2 Qd R 70 at [19].…
ABN Amro Morgans Ltd v. Alders & Ors
[2008] QSC 160

…99 (Qld) rr 8, 304, 307, 367, 685, 926 Supreme Court of Queensland Act 1991 (Qld) s 85 ABN Amro Morgans Ltd v Alders & Ors [2008] QSC 160, cited Blake v Norris (1990) 20 NSWLR 300, cited Covell Matthews and Partners v French Bulls Ltd [1977] 1 WLR 876, applied Fuller v Toms [2010] QCA 283, applied Ibrahim v Peri…
Wickham v Bells Securities Pty Ltd
[2006] QSC 167

…c Affairs of the Commonwealth of Australia; ex parte Lae Qin (1997) 186 CLR 622, applied Wickham v Bell Securities Pty Ltd [2006] QSC 167, cited COUNSEL: A J H Morris QC, with T W Quinn, for the plaintiffs P J Davis QC, with Mr W Dietz, for the respondent P G Lynch (sol), for the defendant SOLICITORS: Broadley Re…
Blake v Norris [Solicitor Costs]
[2003] NSWSC 199 Para 1

…R as referring to both an application starting a proceeding and another application. [4]See the observations of Smart J in Blake v Norris (1990) 20 NSWLR 300 at 306, adopted by Holmes JA in R v Deemal (2010) 2 Qd R 70 at [19].…
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin
[1997] HCA 6

…992] 2 Qd R 395, applied Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lae Qin (1997) 186 CLR 622, applied Wickham v Bell Securities Pty Ltd [2006] QSC 167, cited COUNSEL: A J H Morris QC, with T W Quinn, for the plaintiffs P J Davis QC, with Mr W Dietz, for the respondent…
SCI Operations Pty Ltd v Trade Practices Commission
[1984] FCA 52

…he merits. If, however, it is dismissed it may very well have such an effect. I realise that in SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 Mr Justice Shepherd inclined to the opposite view. However, I am, with respect, not altogether persuaded that that is so in Queensland. At the very lea…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…r v Toms [2010] QCA 283 at [25] per Fraser JA. [2] Uniform Civil Procedure Rule 1999 (Qld) r 310(1). [3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207 at [90] per Fraser JA.…
Moss v Anglo-Egyptian Navigation Co
1 Ch App 108

…(5 th ed., 1871) vol. 1 at 569-570, 714, citing Brandlyn v Ord (1738) 1 Atk. 51; 26 E R 359; Moss v Anglo Egyptian Navigation Company (1865) L R 1 Ch App 108, 115-116. Where the Plaintiff applied to dismiss his own bill, or it was dismissed upon his default when the matter was called upon in open court, the di…
[1977] 1 WLR 876
[1977] 1 WLR 876 Para 1

…ppel,[3] the Defendant and the Respondent submit they will suffer injustice if leave is given. [1]See Covell Matthews and Partners v French Bulls Ltd [1977] 1 WLR 876, applied in Fuller v Toms [2010] QCA 283 at [25] per Fraser JA. [2] Uniform Civil Procedure Rule 1999 (Qld) r 310(1). [3] Port of Melbourne Authority…
(1977) 1 WLR 876
(1977) 1 WLR 876

…[9](1977) 1 WLR 876 at 879.…

Legislation cited in this decision · 2

Uniform Civil Procedure Rules 1999 (Qld)
304, 307, 367, 685, 8, 926 7 mentions (from Para 1)
Supreme Court of Queensland Act 1991 (Qld)
85 2 mentions (from Para 1)

CITATION:	Kennedy and Anor v Griffiths and Anor [2014] QSC 43
PARTIES:	BRUCE JAMES KENNEDY (first plaintiff) BARBARA MARJORY HUNT (second plaintiff) v PAMELA ANNE GRIFFITHS (defendant) IAN CHARLES GRIFFITHS (respondent)
FILE NO/S:	1268 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	17 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2014
JUDGE:	Boddice J
ORDERS:	Leave is granted to the Plaintiffs to discontinue the application for contempt, conditioned on the Plaintiffs not bringing any further application for contempt, or any other court proceedings, based on the same or similar allegations the subject of the contempt application, without the leave of the Court;1. There be no order as to costs.2.
CATCHWORDS	· PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DISCONTINUANCE – where the Plaintiffs brought an application to punish the Defendant and Respondent for contempt – where the Plaintiffs sought leave to discontinue or withdraw the application for contempt at a late stage – where leave to discontinue or withdraw was opposed by the Defendant and Respondent – whether leave to discontinue or withdraw the application for contempt be granted – whether, if leave to discontinue or withdraw the application for contempt be granted, conditions to leave be imposed · PROCEDURE – COSTS – RECOVERY OF COSTS - where the Defendant and Respondent sought costs of the application on an indemnity basis – what order as to costs should be made · Uniform Civil Procedure Rules 1999 (Qld) rr 8, 304, 307, 367, 685, 926 Supreme Court of Queensland Act 1991 (Qld) s 85 ABN Amro Morgans Ltd v Alders & Ors [2008] QSC 160, cited Blake v Norris (1990) 20 NSWLR 300, cited Covell Matthews and Partners v French Bulls Ltd [1977] 1 WLR 876, applied Fuller v Toms [2010] QCA 283, applied Ibrahim v Peri Australia Pty Ltd [2013] NSWCA, applied Mango Boulevarde Pty Ltd v Spencer [2010] QCA 207, cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited R v Deemal (2010) 2 Qd R 70, cited Re Mempoll Pty Ltd [2013] NSWSC 301, distinguished Re Sailport Pty Ltd [1992] 2 Qd R 395, applied Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lae Qin (1997) 186 CLR 622, applied Wickham v Bell Securities Pty Ltd [2006] QSC 167, cited
COUNSEL:	A J H Morris QC, with T W Quinn, for the plaintiffs P J Davis QC, with Mr W Dietz, for the respondent P G Lynch (sol), for the defendant
SOLICITORS:	Broadley Rees Hogan Lawyers, for the plaintiffs Tucker and Cowen Solicitors, for the respondent Lynch Andrews Lawyers, for the defendant