Lowndes v. Delaney & Anor - [2008] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

Lowndes v Delaney & Anor [2008] QDC 93

PARTIES:

JACK ANTHONY LOWNDES

(Plaintiff)

v

GREGORY WILLIAM DELANEY

(First defendant)

and

SHORT PUNCH & GREATORIX (A FIRM)

(Second defendant)

FILE NO:

D 4694 of 1999

PROCEEDING:

Application for leave to proceed

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2008

JUDGE:

Judge Brabazon QC

ORDER:

Declare that the plaintiff’s steps of 7 September 2006 and 15 June 2007 are effectual.

CATCHWORDS:

Application for leave to proceed – whether more than two years passed between steps in the proceeding – whether an unaccepted offer to settle amounts to a step in the action - whether claim should be dismissed for failure to give notice of intention to proceed – the effect of an irregular proceeding – whether steps in the proceeding should be set aside for irregularity

Uniform Civil Procedure Rules 1999, r389(1) & (2), r371 (1) & (2)

Cases considered:

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594
Red Ru Pipeline Construction Company Pty Ltd v State of Queensland [1990] 1 Qd R 389
Smiley v Watson [2002] 1 Qd R 560 at 562
Wright v Ansett Transport Industries Limited [1990] 1 Qd R 297 at 299
Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420
Kanyilmaz v Nominal Defendant, Supreme Court of Queensland, Muir J, BC200004661 (12 January 2000)
Perez v Transfield (Qld) Pty Ltd (1979) Qd R 444
Bates & Ors v Queensland Newspapers P/L & Anor [2001] QSC 083
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455

COUNSEL:

Mr S English for the plaintiff

Mr T Sullivan for the first defendant

Mr A Morris QC for the second defendant

SOLICITORS:

Queensland Law Group for the plaintiff

Minter Ellison for the first defendant

McCullough Robertson for the second defendant

The Issues

Mr Lowndes’ formal application is made according to Rule 389(2) of the UCPR. He asks that he be given leave to proceed, after a delay of more than two years without a step being taken in this proceeding.

At the hearing, his application was framed differently. Mr English suggested that there could be a declaration that two years had not passed, on the basis that there had not been a period of two years before a new step was taken. He conceded that, if no step were taken for more than two years, then his client’s case would have to be dismissed for want of prosecution.

Counsel for the defendants then made oral applications under Rule 371(2), for orders which would bring the plaintiff’s proceedings to an end, on the basis that there had been failures to give a month’s notice of Mr Lowndes’ intention to proceed, after no step had been taken in the proceeding for one year.

So, the issues are these. Has more…

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 Lowndes v. Delaney & Anor

Details

AGLC: Lowndes v Delaney [2008] QDC 93
Case: [2008] QDC 93
Decision Date: 4 April 2008

CaseChat Overview and Summary

Lowndes v. Delaney & Anor involved a dispute between the plaintiff, Lowndes, and the defendants, Delaney and another party, before the court. The primary issue was whether the plaintiff's legal actions were taken within the required timeframe, given the statutory limitations for bringing claims. Specifically, the case questioned whether the court should consider an unaccepted offer to settle as a step in the proceeding, and whether the plaintiff's failure to give notice of intention to proceed should result in the dismissal of the claim. Additionally, the case examined the effect of irregular proceedings and whether steps in the proceeding should be set aside due to such irregularities.

The court had to determine whether the two-year statutory limitation period for bringing claims was breached, considering the steps taken by the plaintiff and the defendants. A key issue was whether the unaccepted offer to settle constituted a step in the proceeding, which would impact the timeline of the case. Another legal issue was the requirement for the plaintiff to provide notice of intention to proceed with the action, and the consequences of failing to do so. The court also needed to assess the implications of irregular proceedings and decide whether to set aside steps in the proceeding due to these irregularities.

In its reasoning, the court held that the plaintiff's steps taken on 7 September 2006 and 15 June 2007 were effective, despite the passage of more than two years between these actions. The court determined that an unaccepted offer to settle should be considered a step in the proceeding, which influenced the timeline of the case. The court found that the failure to give notice of intention to proceed did not warrant dismissal of the claim, as the effect of the irregular proceeding did not significantly prejudice the defendants. Consequently, the court decided not to set aside the steps in the proceeding due to the irregularity.

The court's final order declared that the plaintiff's steps taken on 7 September 2006 and 15 June 2007 were effectual, allowing the proceedings to continue. This decision ensured that the plaintiff's claim would not be dismissed due to the statutory limitation period or the failure to provide notice of intention to proceed. The court's ruling provided clarity on the treatment of unaccepted offers to settle as steps in the proceeding and the consequences of irregular proceedings.

Orders

Orders of the court

Declare that the plaintiff’s steps of 7 September 2006 and 15 June 2007 are effectual.

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:	Lowndes v Delaney & Anor [2008] QDC 93
PARTIES:	JACK ANTHONY LOWNDES (Plaintiff) v GREGORY WILLIAM DELANEY (First defendant) and SHORT PUNCH & GREATORIX (A FIRM) (Second defendant)
FILE NO:	D 4694 of 1999
PROCEEDING:	Application for leave to proceed
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2008
JUDGE:	Judge Brabazon QC
ORDER:	Declare that the plaintiff’s steps of 7 September 2006 and 15 June 2007 are effectual.
CATCHWORDS:	Application for leave to proceed – whether more than two years passed between steps in the proceeding – whether an unaccepted offer to settle amounts to a step in the action - whether claim should be dismissed for failure to give notice of intention to proceed – the effect of an irregular proceeding – whether steps in the proceeding should be set aside for irregularity Uniform Civil Procedure Rules 1999, r389(1) & (2), r371 (1) & (2) Cases considered: Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594 Red Ru Pipeline Construction Company Pty Ltd v State of Queensland [1990] 1 Qd R 389 Smiley v Watson [2002] 1 Qd R 560 at 562 Wright v Ansett Transport Industries Limited [1990] 1 Qd R 297 at 299 Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214 Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420 Kanyilmaz v Nominal Defendant, Supreme Court of Queensland, Muir J, BC200004661 (12 January 2000) Perez v Transfield (Qld) Pty Ltd (1979) Qd R 444 Bates & Ors v Queensland Newspapers P/L & Anor [2001] QSC 083 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455
COUNSEL:	Mr S English for the plaintiff Mr T Sullivan for the first defendant Mr A Morris QC for the second defendant
SOLICITORS:	Queensland Law Group for the plaintiff Minter Ellison for the first defendant McCullough Robertson for the second defendant