Mullholland (aka Peck) v Bengston - [2012] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

Mullholland (aka Peck) v Bengston [2012] QDC 70

PARTIES:

JOYE LORRAINE MULLHOLLAND (aka PECK) and

ALLAN GREGORY PECK

(appellant)

V

JEANINE NOELA BENGSTON
(respondent)

FILE NO/S:

97 of 2008

DIVISION:

Civil Division

PROCEEDING:

Application No. 97 of 2008

ORIGINATING COURT:

Toowoomba District Court

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2012

JUDGE:

Ryrie DCJ

ORDER:

There will be the following orders:

1.   The plaintiff’s application is allowed. Leave is granted to allow the plaintiff to take a further step in the proceedings.

2.   The defendant’s application is dismissed.

3.   I shall hear from the parties on the question of costs (in writing) if they cannot otherwise agree. I shall also make directions in respect of this matter’s future conduct if the parties cannot otherwise agree on a suitable timetable.

4.   The matter is to be returned to the Toowoomba District Court (sitting in its civil jurisdiction) for hearing.

CATCHWORDS:

PROCEDURE – UNIFORM CIVIL PROCEDURE RULES 280 and 389 – where the defendant brought an application seeking an order dismissing the claim for want of prosecution under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff filed a cross application seeking the proceeding be reactivated and for leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 (Qld).

Uniform Civil Procedure Rules 1999 (Qld), rules 280, 389

Tyler and Custom Credit Corporation Limited and Ors [2000] QCA 178 applied

Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 applied

Brisbane South Regional Health Authority v Taylor [1996) 186 CLR considered and applied

Hollyander Pty Ltd v Mike O’Regan & Associates Pty Ltd and Anor [2011] QSC 164 considered

Hall v RH & CE McColl Pty Ltd [2007] QCA 182 considered

COUNSEL:

R Clutterbuck, for the appellant

R Cameron, for the respondent

SOLICITORS:

Aylward Game Solicitors for the appellant

McArthy Durie Lawyers for the respondent

Introduction

The defendant in this matter has applied for an order dismissing the plaintiff’s claim for want of prosecution (r.280 UCPR). The plaintiff has cross applied for leave to proceed (r.389 UCPR) and for directions regarding the future conduct of the proceedings.

As observed by Justice Atkinson in Tyler and Custom Credit Corporation Limited and Ors [2000] QCA 178, when the court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under the UCPR r.389, there are a number of non exhaustive factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. Those considerations are helpfully set out in that decision at pages 2 and 3.

As is the usual practice adopted by this court, the plaintiff’s application for leave to proceed shall be dealt with first.

In Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, Justice Chesterman has outlined the proper approach which is to…

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.

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Details

Case: [2012] QDC 70
Decision Date: 20 April 2012

CaseChat Overview and Summary

In the case of Mullholland (aka Peck) v Bengston, the dispute arose from a legal proceeding that had been inactive for some time. The defendant, Bengston, filed an application seeking an order to dismiss the claim for want of prosecution under Rule 280 of the Uniform Civil Procedure Rules 1999 (Qld). Concurrently, the plaintiff, Mullholland, filed a cross application for the proceeding to be reactivated and for leave to proceed under Rule 389 of the same Rules. The matter was heard in the District Court of Queensland.

The central legal issues before the Court involved the interpretation and application of Rule 280 and Rule 389 of the Uniform Civil Procedure Rules 1999 (Qld). Specifically, the Court needed to determine whether the plaintiff's inactivity warranted dismissal of the claim for want of prosecution, and if not, whether the plaintiff should be granted leave to proceed under the circumstances. This required a balancing of the interests of both parties, including considerations of fairness and the potential impact on the administration of justice.

The Court found that the plaintiff's inactivity did not justify dismissal of the claim for want of prosecution. The Court also concluded that it was appropriate to grant the plaintiff leave to proceed under Rule 389. The Court reasoned that the plaintiff had provided sufficient justification for the delay and that there were no overriding considerations that would prevent the proceeding from continuing. The defendant's application was dismissed, and the plaintiff's cross application was allowed.

The Court made several orders to ensure the matter could proceed effectively. The plaintiff was granted leave to take a further step in the proceedings, and the defendant's application for dismissal was dismissed. Costs were to be addressed through written submissions if the parties could not agree, and directions for the matter's future conduct would be made if necessary. Finally, the matter was to be returned to the Toowoomba District Court (sitting in its civil jurisdiction) for hearing.

Orders

Orders of the court

There will be the following orders:

1. The plaintiff’s application is allowed. Leave is granted to allow the plaintiff to take a further step in the proceedings.

2. The defendant’s application is dismissed.

3. I shall hear from the parties on the question of costs (in writing) if they cannot otherwise agree. I shall also make directions in respect of this matter’s future conduct if the parties cannot otherwise agree on a suitable timetable.

4. The matter is to be returned to the Toowoomba District Court (sitting in its civil jurisdiction) for hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mullholland (aka Peck) v Bengston [2012] QDC 70
PARTIES:	JOYE LORRAINE MULLHOLLAND (aka PECK) and ALLAN GREGORY PECK (appellant) V JEANINE NOELA BENGSTON (respondent)
FILE NO/S:	97 of 2008
DIVISION:	Civil Division
PROCEEDING:	Application No. 97 of 2008
ORIGINATING COURT:	Toowoomba District Court
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2012
JUDGE:	Ryrie DCJ
ORDER:	There will be the following orders: 1. The plaintiff’s application is allowed. Leave is granted to allow the plaintiff to take a further step in the proceedings. 2. The defendant’s application is dismissed. 3. I shall hear from the parties on the question of costs (in writing) if they cannot otherwise agree. I shall also make directions in respect of this matter’s future conduct if the parties cannot otherwise agree on a suitable timetable. 4. The matter is to be returned to the Toowoomba District Court (sitting in its civil jurisdiction) for hearing.
CATCHWORDS:	PROCEDURE – UNIFORM CIVIL PROCEDURE RULES 280 and 389 – where the defendant brought an application seeking an order dismissing the claim for want of prosecution under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff filed a cross application seeking the proceeding be reactivated and for leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 (Qld). Uniform Civil Procedure Rules 1999 (Qld), rules 280, 389 Tyler and Custom Credit Corporation Limited and Ors [2000] QCA 178 applied Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 applied Brisbane South Regional Health Authority v Taylor [1996) 186 CLR considered and applied Hollyander Pty Ltd v Mike O’Regan & Associates Pty Ltd and Anor [2011] QSC 164 considered Hall v RH & CE McColl Pty Ltd [2007] QCA 182 considered
COUNSEL:	R Clutterbuck, for the appellant R Cameron, for the respondent
SOLICITORS:	Aylward Game Solicitors for the appellant McArthy Durie Lawyers for the respondent