Knapman v Oceanic Beaches Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Knapman v Oceanic Beaches Pty Ltd & Ors [2007] QSC 088

PARTIES:

STEPHEN LEE KNAPMAN

(Plaintiff)

V

OCEANIC BEACHES PTY LTD (ACN 060 723 159)

(First Defendant)

AND

KELLY DIVE – WHITSUNDAYS

(Second Defendant)

AND

LEONIE EISZELE

(Third Defendant)

AND

ANSETT AUSTRALIA LIMITED (ACN 004 209 410)

(Fourth Defendant)

AND

HAYMAN RESORT

(Fifth Defendant)

AND

STATE OF QUEENSLAND

(Sixth Defendant)

FILE NO/S:

BS2337/98

DIVISION:

Trial Division

PROCEEDING:

Application – Leave to Proceed and Dismissal of Action for Want of Prosecution

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2007

JUDGE:

Moynihan J

ORDER:

1.  The plaintiff’s application for leave to proceed refused.

2.Claim dismissed for want of prosecution.   

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – where the plaintiff had taken no steps in four years – whether the plaintiff should be granted leave to proceed pursuant to r 389 Uniform civil Procedure Rules 1999 (Qld) – whether the proceedings should be dismissed for want of prosecution

Corporations Act 2001 (Cth) s 601AH(2)
Uniform Civil Procedure Rules 1999 (Qld) 280(2), 389.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered.
Tyler v Custom Credit Corp Ltd& Ors [2000] QCA 178, considered.

William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, considered.

COUNSEL:

J McClymont for the plaintiff.

W Campbell for the third defendant.

SOLICITORS:

Murphy Schmidt for the plaintiff.

Herbert Geer & Rundle for the third defendant.

1. The applicant seeks leave to proceed in this action pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 389 and for the reinstatement of the first defendant pursuant to s 601AH(2) of the Corporations Act 2001 (Cth). The third defendant seeks to have the claim dismissed for want of prosecution pursuant to UCPR 280(2). The fourth, fifth and sixth defendants did not play any part in the proceeding. The claims against them appear to have related to events which took place after those giving rise to the claims against the first, second and third defendants.

1. The action arises out of events which occurred on 14, 15 and 16 March 1995.  The plaintiff and others embarked on a dive boat for instruction in scuba diving so as to obtain a particular certification in the plaintiff’s case of recreational diving over the three day period.  As a consequence of engaging in the diving activity the plaintiff suffered what is referred to as ‘decompression illness’ and is seriously disabled.

1. It is convenient to refer to the first, second and third defendants collectively, including their servants or agents as the defendants. 

1. The first defendant is sued on the basis of conducting the diving business carried on by the second defendant which contracted with the third defendant to provide her services as a dive instructor.

1. The defendants were represented by the same solicitors until they withdrew as…