Murdoch v Lake

Case [2013] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Murdoch v Lake [2013] QSC 268

PARTIES:

MALCOLM ALEXANDER STEPHEN MURDOCH
(plaintiff)

v

STEPHEN MAURICE LINTON LAKE
(defendant)

FILE NO:

BS9994 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application and cross-application

DELIVERED ON:

2 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2013

JUDGE:

Margaret Wilson J

ORDER:

1.   The plaintiff’s application for leave to file and serve an amended claim and a fourth amended statement of claim in accordance with the drafts exhibited to the affidavit of Joel Hunter Pitman sworn and filed on 22 April 2013 is refused;

2.   Leave to replead is refused;

3.   The plaintiff’s claim is dismissed.

4.   The parties to have leave to make written submissions on costs – the defendant’s submissions to be provided by 4pm on 8 October 2013 and the plaintiff’s submissions by 4pm on 11 October 2013.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the plaintiff sought leave to file and serve an amended claim and fourth amended statement of claim under r 375 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff’s pleading was completely redrawn in the draft fourth amended statement of claim – where the fourth amended statement of claim contained allegations that were not made in earlier pleadings, for which the limitation period had expired – where the plaintiff submitted that these arose out of substantially the same facts as that for which relief had already been claimed – whether the plaintiff should be given leave to replead

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DISMISSAL FOR WANT OF PROSECUTION – where the defendant sought dismissal of the proceeding for want of prosecution – where the plaintiff had been ordered to file and serve further and better particulars of the second amended statement of claim, or to further amend the statement of claim to the same effect by 20 February 2013 – where the plaintiff filed a third amended statement of claim on 6 March 2013 – where the plaintiff abandoned reliance on the third amended statement of claim – where the refusal of leave to file and serve the fourth amended statement of claim left the plaintiff in a position similar to not having filed a statement of claim in support of the claim – where there were no periods of undue inactivity on the part of the plaintiff after the commencement of the proceeding – where the fourth amended statement of claim should be taken to represent the best case that the plaintiff could propound – where the fourth amended statement of claim failed to plead a cause of action which was not statute barred – whether having regard to all the circumstances of the case, the claim should be dismissed for want of prosecution

Civil Proceedings Act 2011 (Qld) s 16, s 58
Rules of the Supreme Court 1991 (Qld) O…

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Murdoch v Lake [2013] QSC 268
Case
[2013] QSC 268
Decision Date

CaseChat Overview and Summary

Murdoch v Lake involved a plaintiff seeking leave to file and serve an amended claim and a fourth amended statement of claim. The dispute arose under Rule 375 of the Uniform Civil Procedure Rules 1999 (Qld). The plaintiff's fourth amended statement of claim contained allegations that had not been made in earlier pleadings, for which the limitation period had expired. The plaintiff argued these arose from substantially the same facts as those for which relief had already been claimed. The court had to decide whether the plaintiff should be granted leave to replead.

The court held that the plaintiff’s fourth amended statement of claim was completely redrawn, including allegations for which the limitation period had expired. Despite the plaintiff’s argument that these allegations arose from the same facts, the court found that the new allegations were not adequately connected to the original claims. Additionally, the court considered the defendant's application to dismiss the proceeding for want of prosecution. The plaintiff had been ordered to provide further particulars or further amend the statement of claim, which was not done by the specified date. Although the plaintiff later filed a third amended statement of claim, it was abandoned. The court determined that the refusal of leave to file and serve the fourth amended statement of claim left the plaintiff in a position similar to not having filed a statement of claim, justifying dismissal for want of prosecution.

The court refused the plaintiff’s application for leave to file and serve an amended claim and a fourth amended statement of claim. Leave to replead was also refused. The plaintiff's claim was dismissed. The parties were granted leave to make written submissions on costs. The defendant's submissions were due by 4pm on 8 October 2013, and the plaintiff's by 4pm on 11 October 2013.

Orders

Orders of the court

1. The plaintiff’s application for leave to file and serve an amended claim and a fourth amended statement of claim in accordance with the drafts exhibited to the affidavit of Joel Hunter Pitman sworn and filed on 22 April 2013 is refused;

2. Leave to replead is refused;

3. The plaintiff’s claim is dismissed.

4. The parties to have leave to make written submissions on costs – the defendant’s submissions to be provided by 4pm on 8 October 2013 and the plaintiff’s submissions by 4pm on 11 October 2013.

Background

Background to the litigation

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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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