Pickering v McArthur (No 2)

[2010] QDC 90

DISTRICT COURT OF QUEENSLAND

CITATION:

Pickering v McArthur (No 2) [2010] QDC 90

PARTIES:

CARLYLE PICKERING

Plaintiff

AND

JOHN McARTHUR

Defendant

SHEENAH TURNBULL

Plaintiff

AND

JOHN McARTHUR

Defendant

MAILY PICKERING

Plaintiff

AND

JOHN McARTHUR

Defendant

FILE NO/S:

D1533/01, D1882/01, D1938/01

DIVISION:

PROCEEDING:

Applications

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2009

JUDGE:

McGill DCJ

ORDER:

In each matter, the plaintiff’s application is dismissed with costs; on the defendant’s application, the action is dismissed for want of prosecution, with costs including costs of the application.

CATCHWORDS:

PRACTICE – Leave to Proceed – whether delay of two years since last step – whether step in the proceeding

PRACTICE – Leave to Proceed – relevant circumstances – significance of quantum if action successful – whether leave appropriate

PRACTICE – Want of Prosecution – whether appropriate to dismiss proceeding – circumstances relevant

Supreme Court of Queensland Act 1991 s 85

UCPR r 389(2)

Arc Holdings Pty Ltd v Riana Pty Ltd [2008] QSC 191 – cited.
Bazley v State of Queensland [2001] QSC 476 – cited.
Citicorp Australia Ltd v Metropolitan Public Abbatoir Board [1992] 1 Qd R 592 – considered.
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420 – cited.
Cooper v Hopgood and Ganim [1999] 2 Qd R 113 – applied.
Dempsey v Dorber [1990] 1 Qd R. 418 – cited.
Kaats v Caelers [1966] Qd R 482 – applied.
Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317 – cited.
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 – considered.
Quinlan v Rothwell [2001] QCA 176 – applied.
Robson v Rev Engineering Pty Ltd [1997] 2 Qd R 102 – applied.
Smiley v Watson [2002] 1 Qd R 560 – applied.
Tyler v Custom Credit Corporation Ltd [2000] QCA 178 – applied.
William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 – cited.
Wright v Ansett Transport Industries Ltd [1990] 1 Qd R 297 – cited.

COUNSEL:

M. Grant-Taylor SC and C.C. Hayworth-Smith for the plaintiffs

A.P.J. Collins for the defendant

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiffs

HWL Ebsworth Lawyers for the defendant

1. In these three matters there are cross‑applications, by the respective plaintiffs for leave to proceed under r 389(2), and by the defendant, who is the same defendant in each of the three actions, to dismiss the action for want of prosecution. The six applications were heard together, with the same counsel appearing for each plaintiff, and for the defendant in each matter.

1. I have had some involvement in these and related proceedings in the past, and in the circumstances I should say that it was fortuitous that these applications came to be heard by me.  They were set down for hearing in a week when another judge was listed to hear applications, but that judge had been presiding in a criminal trial which continued into that week, and on the previous Friday the Chief…