Piazza v Geary

[2003] QDC 419

DISTRICT COURT OF QUEENSLAND

CITATION:

Piazza v Geary & Ors [2003] QDC 419

PARTIES:

NATASSIA PIAZZA

Plaintiff

v

MATTHEW FRANCIS GEARY

First Defendant

and

COMMISSIONER OF POLICE

Second Defendant

and

STATE OF QUEENSLAND

Third Defendant

FILE NO/S:

D632/2000

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2003

JUDGE:

McGill DCJ

ORDER:

Leave to the plaintiff to proceed;  cross-application dismissed.

CATCHWORDS:

PRACTICE – Leave to Proceed – dismissal for want of prosecution - 3¼ year delay in 6¾ year old claim – action for assault by police officer – delay fault of solicitors – no particular prejudice – leave granted.

UCPR r.389(2).

Tyler v Custom Credit Corporation Ltd [2000] QCA 179 – applied.

COUNSEL:

A Toolsie for the plaintiff
P B Rashleigh for the third defendant

SOLICITORS:

V Pennisi & Associates for the plaintiff
Gilshenan & Luton for the first defendant
Crown Solicitor for the third defendant

1. This is an application by the plaintiff for leave to proceed, no step having been taken in the proceeding for upwards of two years: r 389(2). There is a cross-application by the third defendant to dismiss the action for want of prosecution under s 85 of the Supreme Court of Queensland Act 1991. The last step in the action was taken on 11 August 2000, when the solicitors for the third defendant provided, at the request of the solicitors for the plaintiff, copies of certain documents in the third defendant’s list of documents, in compliance with r 214(1)(b).[1]  If making a request for copies of documents in a list of documents is a step in the proceeding, the last step taken by or on behalf of the plaintiff was on 1 August 2000;  if not, the plaintiff’s last step was service of the claim and statement of claim on the third defendant on 28 April 2000.

   [1]Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

1. There have been some things done since August 2000.  There was correspondence about a statement of loss and damage, but no such statement was provided.  On 30 January 2001 the solicitor for the third defendant sent a letter pursuant to r 444 pressing for a statement of loss and damage within 14 days.  If there had been an application made for that relief, that would not be a step unless an order was made on that application:  r 389(3).  In my opinion it follows a fortiori that a letter under r 444 is not a step in the action.  On 22 February 2001 another judge made an order under r 591(1) giving the then solicitor for the plaintiff leave to withdraw.  Although that was an application on which there was an order made, in my opinion it was not a step for the purposes of r 389 because it was not something which carried the plaintiff’s action forward, or a step required to be taken by the Rules before the matter could…