Martin v Fielding

[2003] QDC 287

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Fielding [2003] QDC 287

PARTIES:

MELANIE OLGA MARTIN             (Plaintiff)

AND

ALEN FIELDING  (Defendant)

FILE NO/S:

250 of 1997

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

20 August 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

11 August 2003

JUDGE:

Judge J.M. Robertson

ORDER:

1. The application by the defendant for orders that the claim be struck out for want of prosecution pursuant to rule 280 of the UPCR is dismissed.

2. The application by the plaintiff for leave to proceed pursuant to rule 389 (2) of the UCPR is granted.

CATCHWORDS:

PRACTICE – Application – striking out.
PRACTICE – Application – leave to proceed
Consideration of relevant matters arising in relation to the exercise of discretion.

Cases Cited:
Tyler v Custom Credit Corporation Limited [2000] QCA 178
Smiley v Watson & Anor [2001] QDC 55
Smiley v Watson & Anor [2001] QCA 269

Statutes Cited:
Uniform Civil Procedure Rules, rr 5, 280, 389 (2),

COUNSEL:

The solicitor for the applicant defendant

D. Quayle for the respondent plaintiff

SOLICITORS:

Warren Gardiner & Co           (for the applicant defendant)

Greenhalgh Pickard Solicitors (for the respondent plaintiff)

1. Before the Court are two applications. The first in time is an application by the defendant for orders that the claim be struck out for want of prosecution pursuant to rule 280 UCPR. This application was filed on 25 June 2003 and served on the plaintiff soon after. The plaintiff’s application for leave to proceed pursuant to r 389 (2) UCPR was not filed until 8 August 2003.

1. The plaintiff’s claim for declarations and appointment of trustee for the purpose of sale of a property at Petrie Creek Road was filed on 11 August 1997. The defendant’s defence was filed on 24 June 1998, together with a counterclaim for unpaid rent. In passing, I observe that this pleading contains a number of confusing typographical errors in which it appears the words “Plaintiff” and “Defendant” have been erroneously interchanged. It is common ground that since April 1999, the plaintiff has taken no steps to prosecute his claim. Their respective claims arise out of a de facto relationship which the plaintiff asserts was between 1985 and 1991 and the defendant asserts was between 1985 and 1986.

1. The principles governing both applications are the same: Tyler v Custom Credit Corporation Limited [2000] QCA 178. The approach mandated by Atkinson J (with whom McMurdo P and McPherson JA concurred) in Tyler is to consider the relevant matters arising in relation to the exercise of discretion by reference to the issues set out in her Honour’s judgment. This was the approach I took in Smiley v Watson & Anor [2001] QDC 55 which was not criticised on appeal: Smiley v Watson & Anor [2001] QCA 269. Adopting the approach taken by Atkinson J in Tyler, I deal with the relevant issues in these applications.

1. (1)         How long ago the events alleged in the (plaint) occurred and what delay 

there was…