Puppinato v D & D Machinery Pty Ltd - [2010] QSC 47

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…

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.

Keep reading for free

Create a free CaseChat account to read Puppinato v D & D Machinery Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QSC 47
Decision Date: 24 February 2010

CaseChat Overview and Summary

In the case of Puppinato v D & D Machinery Pty Ltd, the plaintiff sought to proceed with legal action against the defendant, D & D Machinery Pty Ltd, regarding a claim that had been initiated in 2001. The plaintiff contended that there was an agency relationship between the parties which was fundamental to their claim. However, the defendant moved to dismiss the proceedings for want of prosecution, arguing that there had been an undue delay since the last step in the proceedings, which was in November 2007. Additionally, the plaintiff had not served a notice of non-party disclosure, which the defendant argued should have constituted a step in the proceedings. The plaintiff also sought the determination of a preliminary issue concerning the existence of an agency relationship, a request that the defendant opposed.

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

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:	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