McDowall v Reynolds

[2002] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

McDowall v Reynolds [2002] QSC 142

PARTIES:

ALBERT JAMES McDOWALL
(Applicant/Plaintiff)
JOHN REYNOLDS
(Respondent/Defendant)

FILE NO/S:

199 of 1989

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

12 March, 2002

DELIVERED AT:

Cairns

HEARING DATE:

6 November 2001

JUDGE:

Jones J

ORDER:

1.   That the defendant’s application is allowed.

2.   That Action No. 1999 of 1989 is dismissed for want of prosecution.

3.   That the plaintiff’s application for leave to proceed is dismissed.

4.   That the plaintiff is to pay the defendant’s costs of and incidental to the action, except in respect of those matters where specific orders have been made.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND PRACTICE UNDER RULES OF COURT – TIME–DELAY SINCE LAST PROCEEDINGS – OTHER MATTERS – where plaintiff had delayed for more than two years in further proceeding with the action – where plaintiff had hitherto twice been granted the leave of the court – whether a further application by the plaintiff for leave to proceed should be dismissed.

Supreme Court of Queensland Act 1991, S 85

Uniform Civil Procedure Rules, r 5(3), r 280, r 371(2000]
Cooper v Hopgood & Ganim (1999) 2 QdR 113 considered
Quinlan v Rothwell & Anor [2001] QCA176, considered

COUNSEL:

Mr. D.B. Fraser QC for the applicant/plaintiff
Mr. D. North SC for the respondent/defendant

SOLICITORS:

Williams Graham & Carman for the applicant/defendant
Corsetti Lawyers for the respondent/defendant

1. In this matter the plaintiff applies pursuant to R.389(2) of the Uniform Civil Procedure Rules (UCPR) for leave to proceed with his action in which no step has been taken for more than two years.  The defendant brings a cross-application for the dismissal of the action for the want of prosecution.

1. Whilst the onus in each instance is on the party making the application and the respective tests to be applied are stated differently, the applications fall to be determined on similar considerations.  In the circumstances the outcome of both applications can be determined by consideration of the application to dismiss in which the defendant bears the onus.

1. The plaintiff’s cause of action arises from an agreement he entered into with one William George Robbins on 15 October 1947.  The plaintiff and his brother, in partnership with Robbins, had mined limestone for a number of years on part of the land then owned by Robbins which, in the main, was used as a cane farm.  That agreement provided for the sale of an area of land of approximately 14 acres which was to be excised from Robbins’ freehold land which was described as Portion 110, County of Solander, Parish of Mowbray contained in Deed of Grant No. N2652 Vol 97 Fol 4 (hereinafter “Por 110”).  That area of land to be excised (hereinafter “the subject land”) included an area of approximately 10 acres over which there was a mining tenement and the other land by which access could be gained to the mining tenement.

Background facts

1. The history of dealings relevant to the subject…