MacDonnell v Rolley

Case [2001] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:  MacDonnell v Rolley [2001] QCA 32
PARTIES:  SUZANNE MACDONNELL
(plaintiff/appellant)
v
JOHN ROLLEY
(first defendant/respondent)
ROBERT ALEXANDER GARDINER
(second defendant)
THE BRISBANE NORTH REGION WOMEN’S
HEALTH SECTOR formerly THE ROYAL WOMEN’S
HOSPITAL SERVICE
(third defendant)
FILE NO/S:  Appeal No 3478 of 2000
SC No 9901 of 1996
DIVISION:  Court of Appeal
PROCEEDING:  General Civil Appeal
ORIGINATING
COURT: 		 Supreme Court at Brisbane
DELIVERED ON:  16 February 2001
DELIVERED AT:  Brisbane
HEARING DATE:  9 November 2000
JUDGES:  Pincus JA, Cullinane and Wilson JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER:  Appeal dismissed. Appellant to pay respondent’s costs, to
be assessed.
CATCHWORDS:  PROCEDURE – Supreme Court procedure – renewal of originating process - Uniform Civil Procedure Rules r 389(2) and r 24(2) – whether plaintiff’s renewal of originating process would prejudice defendant – cause of action having two bases - only one basis affected by prejudice – whether court should allow the one not affected by prejudice on condition that the other one be abandoned
Supreme Court Rules (Qld), O 9 r 1
Uniform Civil Procedure Rules (Qld), r 389(2), r 24(2)
Musumeci v Ferro Constructions Pty Ltd [1976] Qd R 135,
applied.
Rideout v Glaxo Group Limited [1996] 1 Qd R 200, applied.
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180
CLR 337, applied.
Muirhead v The Uniting Church in Australia Property Trust
(Q) [1999] QCA 513; Appeal No 8805 of 1999,
10 December 1999, applied.
Green v Chenoweth [1998] 2 Qd R 572, applied.
Romeo v Conservation Commission of the Northern Territory
(1997-98) 192 CLR 431, applied.
COUNSEL:  R J Douglas SC and R J Lynch for the appellant
J H Dalton for the respondent
SOLICITORS:  Robert Bax & Associates (Clayfield) for the appellant
Minter Ellison for the respondent

  1. PINCUS JA: I agree with Wilson J.

  2. CULLINANE J: I agree with Wilson J.

  3. WILSON J: This is an appeal by the plaintiff against the dismissal of her application for leave to bring an application to renew the writ and for renewal of the writ for 12 months from the order.

  4. By a writ issued on 21 November 1996 the appellant sued the respondent and two other parties. There was no attempt to serve the writ on any of the defendants, and it became stale a year after it was issued: Supreme Court Rules Order 9 rule 1. Wishing to proceed only against the respondent, the appellant filed her application on 11 November 1999. It was heard in February 2000 and subsequently dismissed.

  5. The application was dealt with under the Uniform Civil Procedure Rules. The appellant sought leave to make the application under rule 389(2), on the basis that more than 3 years had elapsed since the last step in the proceeding. However, as Matthews J explained in Musumeci v Ferro Constructions Pty Ltd [1976] Qd R 135, an application for renewal is not itself a step in the proceeding, and…

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MacDonnell v Rolley [2001] QCA 32
Case
[2001] QCA 32
Decision Date

CaseChat Overview and Summary

The case of MacDonnell v Rolley involved the plaintiff, MacDonnell, seeking to renew their originating process under the Uniform Civil Procedure Rules. The defendant, Rolley, opposed the renewal on the grounds that it would prejudice them. The matter was heard in the Supreme Court of Australia. The central issue before the court was whether the renewal of the originating process would cause prejudice to the defendant and, if so, whether the court should allow the renewal of the unaffected cause of action on the condition that the other, prejudiced cause of action be abandoned.

The court examined the relevant provisions of the Uniform Civil Procedure Rules, specifically rules 389(2) and 24(2), which address the renewal of originating processes and the potential prejudice to the defendant. The court noted that the plaintiff's cause of action had two distinct bases, and only one of these was affected by the prejudice. The court had to determine whether it was appropriate to allow the renewal of the unaffected cause of action under these circumstances. The court found that allowing the renewal of the unaffected cause of action, while abandoning the prejudiced one, was a reasonable approach given the specific circumstances of the case.

In its decision, the court concluded that the renewal of the originating process should proceed, but only in relation to the cause of action that was not prejudiced. The court ordered that the renewal of the originating process be allowed on the condition that the plaintiff abandon the prejudiced cause of action. This approach ensured that the defendant was not unfairly prejudiced while allowing the plaintiff to proceed with the unaffected cause of action. The appeal by the plaintiff was dismissed, and the appellant was ordered to pay the respondent's costs, to be assessed.

Orders

Orders of the court

Appeal dismissed. Appellant to pay respondent’s costs, to

be assessed.

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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