McDowall v Reynolds - [2006] QSC 414

SUPREME COURT OF QUEENSLAND

CITATION:

McDowall v Reynolds [2006] QSC 414

PARTIES:

ALBERT THOMAS McDOWALL
(Plaintiff)
v
JOHN KEITH REYNOLDS
(Defendant)

FILE NO/S:

S142 of 2001

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

1 December 2006

DELIVERED AT:

Cairns

HEARING DATE:

9 August 2006

JUDGE:

Jones J

ORDER:

1. Claim No 142 of 2001 is permanently stayed.
2. The plaintiff’s application for liberty to proceed with the claim is dismissed.
3. With effect from 21 days from the date hereof unless further ordered the plaintiff pay the defendant’s costs of and incidental to the claim (including reserved costs) to be assessed on the standard basis.
4. Each party have leave to make written submission on the issue of costs within 14 days from the date hereof.

CATCHWORDS:

PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – application by defendant to have proceedings permanently stayed or struck out as an abuse of process – plaintiff’s claim based on two written agreements made in 1947 and 1961 – parties to the agreement are deceased – key witnesses and crucial evidence missing – whether continuation of action constitutes an abuse of court’s process – whether permanent stay of action should be granted

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Birkett v James [1978] AC 297
McDowell v Reynolds [2004] QCA 245
McDowall v Reynolds [2002] QSC 142

Ridgeway v The Queen (1995) 184 CLR 19

Rogers v The Queen (1994) 181 CLR

Walton v Gardiner (1993) 177 CLR 378

Williams v Zupp Motors Pty Ltd [1990] 2 Qd R 493

COUNSEL:

Mr Griffin QC for the applicant/defendant
Mr Philp SC with Mr Ryall for the respondent/plaintiff

SOLICITORS:

Murray Lyons for the applicant
Bottoms English for the respondent

Before me are applications by each party. The plaintiff, Donald McDowall, as executor of the Estate of Albert McDowall (deceased), seeks liberty to proceed with the estate’s claims for a declaration that the defendant holds certain lands on trust on behalf of the estate. The defendant seeks leave to pursue his earlier application to have the plaintiff’s claim permanently stayed or struck out as an abuse of process.

The earlier hearing of this application resulted in an order being made to stay the claim until further order. The principal issue then was whether the pursuit of this proceeding, raising identical claims to those in action No 199 of 1989 (the “prior action”) which had been dismissed for want of prosecution, amounted to an abuse of process. As appears from paragraphs [4] – [7] of my reasons, my decision to stay the proceedings until further order was influenced by a consideration of the authorities of Madden v Kirkegard Elwood and Partners[1], Williams v Zupp Motors Pty Ltd[2] and Birkett v James[3]. Further, there was an issue about identifying the scope of the relief available to the plaintiff insofar as any award of equitable damages could not be truly assessed until proceedings…

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 McDowall v Reynolds

Details

AGLC: McDowall v Reynolds [2006] QSC 414
Case: [2006] QSC 414
Decision Date: 1 December 2006

CaseChat Overview and Summary

The defendant, Reynolds, brought an application to the Supreme Court of Queensland to permanently stay or strike out the plaintiff McDowall’s claim as an abuse of process. The claim arose from two written agreements made in 1947 and 1961, which the plaintiff sought to enforce. Both parties to the original agreements are now deceased, and there are significant gaps in the evidence and key witnesses that would otherwise support the plaintiff’s case. The core issue before the court was whether allowing the plaintiff to proceed with the claim would constitute an abuse of the court’s process, considering the absence of the parties and key evidence.

The court considered the principles governing abuse of process and the inherent jurisdiction of the court to prevent such abuse. It examined the circumstances of the case, including the age of the agreements, the death of the original parties, and the absence of witnesses and documentary evidence. The court noted that the plaintiff’s case was built on inherently weak foundations, with critical evidence and witnesses no longer available. The court concluded that allowing the proceedings to continue would not only be futile but would also waste the resources of the court. Therefore, the court found that the plaintiff’s action amounted to an abuse of process.

Accordingly, the court permanently stayed the plaintiff’s claim and dismissed the plaintiff’s application for leave to proceed. The court ordered that the plaintiff pay the defendant’s costs of and incidental to the claim, to be assessed on the standard basis, within 21 days from the date of the order. Both parties were given leave to submit written submissions on the issue of costs within 14 days from the date of the order.

Orders

Orders of the court

1. Claim No 142 of 2001 is permanently stayed.

2. The plaintiff’s application for liberty to proceed with the claim is dismissed.

3. With effect from 21 days from the date hereof unless further ordered the plaintiff pay the defendant’s costs of and incidental to the claim (including reserved costs) to be assessed on the standard basis.

4. Each party have leave to make written submission on the issue of costs within 14 days from the date hereof.

Background

Background to the litigation

Full text does not contain this section.

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:	McDowall v Reynolds [2006] QSC 414
PARTIES:	ALBERT THOMAS McDOWALL (Plaintiff) v JOHN KEITH REYNOLDS (Defendant)
FILE NO/S:	S142 of 2001
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	1 December 2006
DELIVERED AT:	Cairns
HEARING DATE:	9 August 2006
JUDGE:	Jones J
ORDER:	1. Claim No 142 of 2001 is permanently stayed. 2. The plaintiff’s application for liberty to proceed with the claim is dismissed. 3. With effect from 21 days from the date hereof unless further ordered the plaintiff pay the defendant’s costs of and incidental to the claim (including reserved costs) to be assessed on the standard basis. 4. Each party have leave to make written submission on the issue of costs within 14 days from the date hereof.
CATCHWORDS:	PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – application by defendant to have proceedings permanently stayed or struck out as an abuse of process – plaintiff’s claim based on two written agreements made in 1947 and 1961 – parties to the agreement are deceased – key witnesses and crucial evidence missing – whether continuation of action constitutes an abuse of court’s process – whether permanent stay of action should be granted Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Birkett v James [1978] AC 297 McDowell v Reynolds [2004] QCA 245 McDowall v Reynolds [2002] QSC 142 Ridgeway v The Queen (1995) 184 CLR 19 Rogers v The Queen (1994) 181 CLR Walton v Gardiner (1993) 177 CLR 378 Williams v Zupp Motors Pty Ltd [1990] 2 Qd R 493
COUNSEL:	Mr Griffin QC for the applicant/defendant Mr Philp SC with Mr Ryall for the respondent/plaintiff
SOLICITORS:	Murray Lyons for the applicant Bottoms English for the respondent