McKenzie v Honnery

[2002] QSC 303

SUPREME COURT OF QUEENSLAND

CITATION:

McKenzie v. Honnery & Ors [2002] QSC 303

PARTIES:

PAUL McKENZIE
(respondent/plaintiff)
v
GLENVILLE COLIN HONNERY AND ELIZABETH ELLEN HONNERY
(first defendant)
COUNCIL OF THE SHIRE OF FLINDERS
(applicant/second defendant)
PRIMARY INDUSTRIES CORPORATION AND/OR DEPARTMENT IF IRRIGATION AND WATER SUPPLY AND/OR STATE OF QUEENSLAND
(third defendant)

FILE NO/S:

S 66 of 1995

DIVISION:

Trial

PROCEEDING:

Application for Leave to Enter Judgment

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

1 October 2002

DELIVERED AT:

Townsville

HEARING DATE:

25 September

JUDGES:

Cullinane J

ORDER:

1. Judgment in the action for the applicant/          defendant against the respondent/plaintiff

2.   Costs of the action to be assessed.
3. Respondent to pay the applicant’s costs of the application to be assessed.

CATCHWORDS:

PROCEDURE – QUEENSLAND – where applicant/defendant seeks order against respondent/plaintiff under Rule 293 of the Uniform Civil Procedure Rules – where order sought by applicant/defendant to stay the action or strike it out and have Judgment entered in it’s favour on grounds of delay and failure to take steps – whether judgment can be entered if it is clear that claim must fail or has no real prospect of success

TORTS – NEGLIGENCE – DANGEROUS PREMISES - where plaintiff suffered grievous injury in an accident at Farleigh Waterhole – where applicant is local authority for the relevant area – whether duty of care can be imposed on basis of occasional work carried out on the premises by the applicant – where liability on condition of a premises to be based upon occupation or some degree of use or control related to the creation or existence or continuance of the risk or danger

Uniform Civil Procedure Rules 1999 (Qld) Rules 293 and 292

CSR Ltd v Casaron Pty & Ors (2002) QSC 21 (15 February 2002
McPhee v Zarb & Ors [2002] QSC 4 (8 January 2002)
Prast v Town of Cottesloe (2000) 22 WAR 474
Romeo v Conservation Commission (NT) (1988) 192 CLR 431
Wheat v E. Lacon & Co. Ltd (1966) AC 552

COUNSEL:

P Hastie for the applicant/second defendant
J Webb for the respondent/plaintiff

SOLICITORS:

Sparke Helmore for the applicant/second defendant
Barrett Wherry, Solicitors and Attorneys for the respondent/plaintiff

1. The applicant/defendant seeks an order that judgment be entered for it against the respondent/plaintiff under Rule 293 of the Uniform Civil Procedure Rules (the Rules). In addition an order is sought staying the action or striking it out and entering judgment in the applicant’s favour under the inherent jurisdiction of the court on the grounds of delay and failure to take steps in accordance with the Rules although it is now acknowledged that at present the respondent is not in default under any Rule.

1. The case has had a long and somewhat tortuous history.

1. The plaintiff suffered grievous injury in an accident at Fairleigh Waterhole near Hughenden on 11^th April 1992.  The applicant is the local authority for the relevant area. 

1. The Writ of Summons was filed on 10^th April 1995.  The respondent also sued…