Oldmeadow v Trevorrow - [2023] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Oldmeadow v Trevorrow [2023] QSC 38

PARTIES:

Michael Oldmeadow as Administrator of the Estate of Barry Griffith Clark

(plaintiff)

v
Russell John Trevorrow

(defendants)

FILE NO/S:

SC No. 13285/19; SC No. 11072/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2022

JUDGE:

Freeburn J

ORDERS:

1.   The application for leave to proceed under the Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused;

2.   The application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022 is refused;

3. Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 is allowed;

4. Mr Oldmeadow’s application in proceeding number 11072/22 for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act 2000 is refused.

5.   The parties be heard on costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – DELAY IN PROSECUTION – EXTENSION OF TIME – CROSS APPLICATION TO DISMISS FOR WANT OF PROSECUTION – where an application is brought for leave to proceed after no action has been taken in the proceedings for an excess of two years – where an application is brought for an extension of time to comply with orders – where a cross application is brought by the defendant to dismiss the proceeding for want of prosecution - where an application is brought to extend the limitation period – whether there is a satisfactory explanation for the delay and whether the defendant will suffer prejudice if leave is given – whether extending the time to comply with orders would relieve against injustice – whether the cross application should be allowed – whether discretion should be exercised to extend the limitation period

Legislation cited
Guardianship and Administration Act 2000 (Qld) s 59(7)

Uniform Civil Procedure Rules 1999 (Qld) rules 5, 7, 24, 80, 280, 389(2)

Cases cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Dempsey v Dorber [1990] 1 Qd R 418

FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

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

Mango Boulevard Pty Ltd v Spencer [2007] QSC 276

Tyler v Custom Credit Corp Ltd [2000] QCA 178

COUNSEL:

N Bender SC and C Doyle for the applicant

P Dunning KC and L Bowden for the respondent

SOLICITORS:

Quinn Emanuel Urquhart & Sullivan for the applicant

Legacy Legal Group for the respondent

REASONS

The Background

Barry Griffith Clark (Mr Clark) died on 29 May 2019. At the time of his death Mr Clark was a quadriplegic with dementia who had suffered from decreasing cognitive function from at least August 2012.[1] The applicant, Mr Oldmeadow, is the administrator of Mr Clark’s estate.
[1]The history which follows is largely drawn from…

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 Oldmeadow v Trevorrow

Details

AGLC: Oldmeadow v Trevorrow [2023] QSC 38
Case: [2023] QSC 38
Decision Date: 9 March 2023

CaseChat Overview and Summary

Oldmeadow v Trevorrow involved a legal dispute in the Supreme Court of Queensland, where the plaintiff, Oldmeadow, sought leave to proceed with a claim that had been inactive for over two years. The defendant, Trevorrow, filed a cross-application to dismiss the proceeding for want of prosecution and opposed the plaintiff's applications for an extension of time to comply with an earlier order and for an extension of the relevant limitation period. The court had to determine whether there was a satisfactory explanation for the plaintiff's delay and if the defendant would suffer prejudice if leave was granted. Additionally, the court had to decide if extending the time to comply with orders would prevent injustice and if the cross-application to dismiss should be allowed. Finally, the court needed to consider whether to exercise its discretion to extend the limitation period.

The court found that the plaintiff had not provided a satisfactory explanation for the delay in taking action on the proceeding. The plaintiff's application for leave to proceed was denied because the delay was excessive and unjustified. The plaintiff's application for an extension of time to comply with the earlier order was also refused as the plaintiff had not demonstrated a sufficient reason for the delay. The court accepted that the defendant would suffer prejudice if the proceeding were allowed to continue, given the significant delay. The cross-application to dismiss for want of prosecution was granted, leading to the dismissal of the plaintiff's proceeding. Furthermore, the plaintiff's application to extend the limitation period was refused as the court found no valid reason to justify the delay in bringing the proceeding.

The court's decision highlights the importance of timely action in legal proceedings and the potential consequences of prolonged inactivity. The plaintiff's failure to provide a satisfactory explanation for the delay resulted in the dismissal of the proceeding, underscoring the need for diligent prosecution of claims. The court's refusal to extend the limitation period and grant the other applications further reinforces the principle that procedural timelines must be adhered to, and unjustified delays may result in adverse outcomes for the party at fault. The court's orders also indicate that the matter of costs will be addressed in subsequent hearings.

Orders

Orders of the court

1. The application for leave to proceed under the Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused;

2. The application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022 is refused;

3. Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 is allowed;

4. Mr Oldmeadow’s application in proceeding number 11072/22 for an extension of the relevant limitation period under s 59(7) of the Guardianship and Administration Act 2000 is refused.

5. The parties be heard on costs.

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:	Oldmeadow v Trevorrow [2023] QSC 38
PARTIES:	Michael Oldmeadow as Administrator of the Estate of Barry Griffith Clark (plaintiff) v Russell John Trevorrow (defendants)
FILE NO/S:	SC No. 13285/19; SC No. 11072/22
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	9 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2022
JUDGE:	Freeburn J
ORDERS:	1. The application for leave to proceed under the *Uniform Civil Procedure Rules 1999* (UCPR) rule 389(2) is refused; 2. The application for an extension of time within which to comply with the order made by Callaghan J on 29 July 2022 is refused; 3. Mr Trevorrow’s cross application to dismiss the proceeding for want of prosecution under UCPR rule 280 is allowed; 4. Mr Oldmeadow’s application in proceeding number 11072/22 for an extension of the relevant limitation period under s 59(7) of the *Guardianship and Administration Act 2000* is refused. 5. The parties be heard on costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES – DELAY IN PROSECUTION – EXTENSION OF TIME – CROSS APPLICATION TO DISMISS FOR WANT OF PROSECUTION – where an application is brought for leave to proceed after no action has been taken in the proceedings for an excess of two years – where an application is brought for an extension of time to comply with orders – where a cross application is brought by the defendant to dismiss the proceeding for want of prosecution - where an application is brought to extend the limitation period – whether there is a satisfactory explanation for the delay and whether the defendant will suffer prejudice if leave is given – whether extending the time to comply with orders would relieve against injustice – whether the cross application should be allowed – whether discretion should be exercised to extend the limitation period Legislation cited Guardianship and Administration Act 2000 (Qld) s 59(7) Uniform Civil Procedure Rules 1999 (Qld) rules 5, 7, 24, 80, 280, 389(2) Cases cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dempsey v Dorber [1990] 1 Qd R 418 FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 Mango Boulevard Pty Ltd v Spencer [2007] QSC 276 Tyler v Custom Credit Corp Ltd [2000] QCA 178
COUNSEL:	N Bender SC and C Doyle for the applicant P Dunning KC and L Bowden for the respondent
SOLICITORS:	Quinn Emanuel Urquhart & Sullivan for the applicant Legacy Legal Group for the respondent