SUPREME COURT OF QUEENSLAND
CITATION:
Puppinato v D & D Machinery Pty Ltd [2010] QSC 47
PARTIES:
Stephen Ilario Puppinato
Applicant/Plaintiff
And
D & D Machinery Pty Ltd ACN 000495287
Defendant/Respondent/Cross Applicant
FILE NO/S:
S16/2001
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
24 February 2010
DELIVERED AT:
Supreme Court Rockhampton
HEARING DATE:
5 February 2010
JUDGE:
McMeekin J
ORDER:
1. The plaintiff’s application is dismissed.
2. The proceedings S16 of 2001 are struck out.
3. The plaintiff is ordered to pay the defendant’s costs, including reserved costs, of the applications and the proceedings.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – where the last step in proceedings was in November 2007 – where the service of a notice of non-party disclosure did not constitute a step in proceedings – where the defendant sought to dismiss the proceedings for want of prosecution – whether plaintiff’s explanation reasonable – whether leave to proceed should be granted
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – where the plaintiff sought the determination of a preliminary issue concerning the existence of an agency relationship – where there had been no prior order of the court that there be any separate determination of any question in the matter – where the determination is fundamental to the plaintiff’s claim – whether the preliminary issue should be determined
COUNSEL:
J.W. Lee for the applicant/plaintiff
V.G. Brennan for the defendant/respondent/cross applicant
SOLICITORS:
Stephens & Tozer Solicitors for the applicant/plaintiff
McMahon Clarke Legal for the defendant/respondent/cross applicant
This is an application by the plaintiff in the action, Stephen Ilario Puppinato, for leave to take a step in the proceedings after a delay of two years: see r 389(2) Uniform Civil Procedure Rules 1999 (“UCPR”).
The respondent, the defendant in the action, D & D Machinery Pty Ltd, has brought a cross application to have the plaintiff’s proceedings dismissed for want of prosecution pursuant to either r 280 of the UCPR or alternatively the inherent power of the court.[1]
[1]As to the availability of the inherent power see Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176.
The plaintiff also sought in his application that a preliminary issue be determined, that issue concerning the existence of an agency relationship between the defendant and various distributors. There has been no prior order of the court that there be any separate determination of any question in the matter: see r 483(1) of the UCPR, nor was there any agreement between the parties that I take that course. The question is fundamental to a significant part of the plaintiff’s claims and indeed that is why Mr Lee, counsel who appeared on behalf of the plaintiff, sought that it be determined. Indeed I understood him to submit that if the determination was against his client that would have a significant impact…
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- Case
- [2010] QSC 47
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the plaintiff's explanation for the delay in proceedings was reasonable, and whether leave to proceed should be granted. The court also needed to determine if the preliminary issue concerning the agency relationship should be decided, given that there had been no prior court order mandating such a separate determination. The court considered the principles of justice and fairness in deciding whether to strike out the proceedings, the reasonableness of the delay, and the potential prejudice to the defendant.
The court found that the plaintiff's explanation for the delay was not reasonable, and the delay was significant enough to warrant dismissal of the proceedings. The court also ruled that the preliminary issue concerning the agency relationship should not be determined, as there was no prior order for a separate determination and it was not fundamental to the claim. Consequently, the plaintiff's application was dismissed, the proceedings were struck out, and the plaintiff was ordered to pay the defendant's costs, including reserved costs, of the applications and the proceedings.
Orders
Orders of the court
1. The plaintiff’s application is dismissed.
2. The proceedings S16 of 2001 are struck out.
3. The plaintiff is ordered to pay the defendant’s costs, including reserved costs, of the applications and the proceedings.
Background
Background to the litigation
Full text does not contain this section.
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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