Lyon v Burgess

[2023] QDC 57

DISTRICT COURT OF QUEENSLAND

CITATION:

Lyon v Burgess [2023] QDC 57

PARTIES:

TRENTON BRADLEY LYON

(plaintiff)

v
KAYLAH PAULINE BURGESS

(defendant)

FILE NO/S:

ID100/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Ipswich

DELIVERED ON:

12 April 2023

DELIVERED AT:

Ipswich

HEARING DATE:

On the papers

JUDGE:

Horneman-Wren SC, DCJ

ORDERS:

1.       The orders of the court made on 16 November 2018 and 6 December 2018 are vacated

2.       The proceeding is dismissed

CATCHWORDS:

Civil practice and procedure – freezing order – dismissal of proceedings – where the plaintiff brought a claim seeking a freezing order against the defendant – where the claim was commenced 4 years ago – where neither the plaintiff nor defendant has taken a step in the proceeding for more than 2 years – dismissal of proceeding – proceedings dismissed

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s 68(1)(b)(viii)

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 389(2)

CASES:

Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192

Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455

COUNSEL:

Plaintiff (self-represented)

SOLICITORS:

Defendant (self-represented)

1. This proceeding is dormant.  There has been no attempt to progress the substantive litigation.  It ought to be brought to an end.

2. On 14 November 2018 the applicant filed an application in which the only relief sought was a freezing order. The matter came on that day, the applicant having sought an urgent hearing. The court declined to entertain the application because there was, then, no proceeding commenced in which any relief was sought under s 68 of the District Court of Queensland Act 1967.  The court thus lacked jurisdiction to entertain the application.[1]

   [1]Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192.

3. The application was given a return date of 16 November 2018.  On 15 November 2018 the applicant, as plaintiff, filed a claim and a statement of claim seeking, among other relief, a declaration of trust within the court’s jurisdiction.[2]

   [2]S 68(1)(b)(viii) District Court of Queensland Act 1967.

4. On 16 November 2018, the plaintiff having provided undertakings, the court made a freezing order on an interim basis until a further hearing of the matter on 29 November 2018 with directions as to service.

5. At the further hearing on 29 November 2018, the plaintiff having proved personal service on the defendant, the court ordered that its earlier orders of 16 November 2018 have effect until 6 December 2018.

6. At a further hearing on 6 December 2018, the court ordered that the orders made on 16 November 2018 have effect until trial or earlier orders.  The time for the defendant’s compliance with those parts of the earlier orders which required provision of information was extended to 13 December 2018.

7. Since the making of the orders on 6 December 2018 there has been no step taken by any party, but most notably by the plaintiff.

8. On 27 January 2023 the court registry received email correspondence from the National Australia Bank upon which the freezing order had apparently been served.  The bank sought confirmation as to whether the matter was still ongoing or whether the freezing order had been amended or varied.

9. The court listed the matter for mention on 17 February 2023.  Correspondence was forwarded to the plaintiff, who represents himself in the proceeding, by email on 15 February 2023 informing him of the mention of the matter on 17 February 2023.  No response was received to that email.  There was no appearance for either the plaintiff or defendant on 17 February 2023.  On that occasion the matter was listed for further mention on 7 March 2023.

10. By letters dated 24 February 2023, the registrar informed the parties of the further mention date.  Those letters also informed the parties that their failure to attend may result in orders being made in their absence.

11. On 7 March 2023 there was no appearance by either the plaintiff or defendant.  No response has been received from the plaintiff.  Subsequently, on 22 March 2023, the letter to the defendant was returned to the court registry with an endorsement on the envelope that the plaintiff was not at that address.  It was the address at which the defendant had previously been personally served.

12. Rule 5 of the Uniform Civil Procedure Rules 1999 sets out the philosophy of the rules and the overriding obligations of the parties and the court. Rule 5(1) provides that the purpose of the rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense.

13. Rule 5(3) provides that the party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

14. Rule 5(4) provides that the court may impose appropriate sanctions if a party does not comply with the rules. Those sanctions may extend to the dismissal of the proceeding.[3] 

    [3]Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455.

15. This proceeding has been dormant for more than four years.  Attempts to have the matter mentioned which would have provided the plaintiff with an opportunity to inform the court of any intended progress of the proceeding have not been fruitful.  The plaintiff cannot take any further step without the court’s order.  That situation accrued more than two years ago after a, then, two-year delay.[4]

    [4]Rule 389(2).

16. The plaintiff has failed to meet his implied undertaking to proceed in an expeditious way.  He has seemingly abandoned the proceeding.

17. In those circumstances, it is inappropriate that the freezing order should remain in place.  It will be vacated.  It is also inappropriate that the abandoned proceeding should remain on foot.  It will be dismissed.

    Disposition

18. The court orders:

    1.The orders of 16 November 2018 and 6 December 2018 are vacated.

    2.The proceeding is dismissed.