Mathiesen v Lawson

[2019] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

Mathiesen v Lawson & Ors [2019] QCA 35

PARTIES:

RODERICK GORDON MATHIESEN
(appellant)
v
ALAN JOSEPH LAWSON
(first respondent)
GRAHAM FARREN
(second respondent)
TONNIJ JOHANNES BOBELDYK
(third respondent)
COMPACTOR HIRE (TOWNSVILLE) PTY LTD
ACN 077 355 447
(fourth respondent)
ROD MATHIESON PLANT HIRE PTY LTD
ACN 011 006 447 (IN LIQUIDATION)
(fifth respondent)

FILE NO/S:

Appeal No 8213 of 2018
SC No 410 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville – [2018] QSC 154 (North J)

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2018

JUDGES:

Sofronoff P and Philippides JA and Boddice J

ORDERS:

The appeal be dismissed, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the primary judge refused an application, made instanter, for leave to proceed – where the proceeding was commenced almost a decade earlier – where the primary judge ordered that the proceeding be dismissed for want of prosecution – where there was potential prejudice that witnesses, recollection or documents could have been lost – whether the primary judge erred in the exercise of his discretion to dismiss the proceeding by acting upon a wrong principle and mistaken facts – whether the primary judge erred by giving inadequate reasons

Uniform Civil Procedure Rules 1999 (Qld)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Pittaway v Noosa Cat Australia Pty Ltd [2016] 2 Qd R 556; [2016] QCA 4, cited
Tyler v Custom Credit Corporation Ltd & Ors[2000] QCA 178, cited
Ure v Robertson [2017] 2 Qd R 566; [2017] QCA 20, cited

COUNSEL:

N Andreatidis, with S Kelly, for the appellant
D B Fraser QC, with P W Telford, for the respondent

SOLICITORS:

Cohen Legal for the appellant
Connolly Suthers for the respondent

1. SOFRONOFF P:  I agree with the reasons of Boddice J and the orders his Honour proposes.

2. PHILIPPIDES JA:  For the reasons given by Boddice J, I agree with the orders proposed by his Honour.

3. BODDICE J:  On 4 July 2018, the primary judge delivered reasons for refusing an application by the appellant, made instanter, for leave to proceed in respect of a proceeding commenced against the respondents almost a decade earlier.  The primary judge further ordered that the proceeding be dismissed for want of prosecution and that judgment be entered for the respondents against the appellant with costs.

4. The appellant appeals those orders.  At issue is whether the primary judge erred in the exercise of his discretion to dismiss the proceeding by acting upon a wrong principle and mistaken facts, or by giving inadequate reasons.

Background

1. The appellant and the first, second and third respondents are businessmen.  Between 1989 and 2008, they operated a business together through the seventh named respondent.  The other respondents were associated entities.

2. In 2007, a dispute arose between the appellant and…