QBCC v Crocker - [2024] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

QBCC v Crocker & another [2024] QDC 140

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(Plaintiff)

v

LEE ANTHONY CROCKER
(First Defendant)

and

DENE WARD CROCKER

(Second Defendant)

FILE NO:

729/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

11 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2024

JUDGE:

Heaton KC DCJ

ORDERS:

1. Pursuant to rule 280(2) of the UCPR, the plaintiff’s Claim and Statement of Claim filed on 31 March 2021 are dismissed for want of prosecution.

2. The Application by the plaintiff (QBCC) filed on 5 August 2024 seeking leave to proceed pursuant to rule 389 is dismissed.

3. The plaintiff pay the defendants’ costs of and incidental to the applications and the proceedings.

CATCHWORDS:

Pleadings — Statement of claim — Striking out of statement of claim — Practice and procedure — Proceedings — Dismissal — Want of prosecution

LEGISLATION

Uniform Civil Procedure Rules 1999 (Qld) rr 5; 280; 292; 389
Queensland Building and Construction Commission Act 1991 (Qld) r 111C

CASES

Tyler v Custom Credit Corp Ltd [2000] QCA 178
Dempsey v Dorber [1990] 1 Qd R 418
Queensland Building and Construction Commission v Smith [2024] QDC 101
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372

COUNSEL:

A Tindall (Applicant)

N Cooke (First and Second Defendants)

The Queensland Building and Construction Commission (QBCC) commenced action against the defendants on 31 March 2021, then took no action after 10 December 2021 to progress that action. As a consequence of that inaction, two related applications are now before the court. Firstly, by application filed on 26 July 2024, the defendants seek an order pursuant to rule 280 of the Uniform Civil Procedure Rules 1999 (UCPR) to dismiss the Cause of Action for want of prosecution. Secondly, by application filed on 5 August 2024 the QBCC seek leave to proceed pursuant to rule 389 of the UCPR.
It is uncontroversial that the last step in the proceeding was on 10 December 2021 and that therefore, a period exceeding two years has elapsed during which no further steps have been taken to progress the Cause of Action. By operation of rule 389 of the UCPR no new step may be taken in the proceedings without an order of the court. Further, in light of the plaintiff’s inaction, rule 280 of the UCPR empowers the court to dismiss a proceeding for want of prosecution.
The factors relevant to the discretion to dismiss a proceeding for want of prosecution and the discretion to grant leave to proceed under rule 389 overlap such that it is appropriate to consider these applications together. The proper approach is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for granting leave.[1] The courts discretion is not fettered by the application of rigid rules but must take into account all of…

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.

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Details

Case: [2024] QDC 140
Decision Date: 11 October 2024

CaseChat Overview and Summary

The plaintiff, Queensland Building and Construction Commission (QBCC), filed a claim against the defendant, Crocker, which was dismissed for want of prosecution. The dispute arose from an alleged contravention of the Building and Construction Industry (Registration and Licensing) Act 2005 by Crocker. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The QBCC sought to strike out the statement of claim, which was filed on 31 March 2021, and subsequently applied for leave to proceed under rule 389 of the Uniform Civil Procedure Rules 1999 (Qld).

The court was required to determine whether the plaintiff had complied with procedural requirements and whether the dismissal of the claim for want of prosecution was appropriate. The court had to consider the reasons for the delay in proceeding with the claim and whether the delay was justified. The court also needed to assess whether granting leave to proceed would be in the interests of justice.

The court found that the delay in proceeding with the claim was not justified, and the plaintiff had not demonstrated good cause for the delay. The tribunal noted that the plaintiff had not provided any explanation for the significant delay in bringing the proceedings. The court concluded that the dismissal of the claim for want of prosecution was appropriate and that granting leave to proceed would not be in the interests of justice. Consequently, the plaintiff's claim and statement of claim were dismissed, and the application for leave to proceed was also dismissed. The QBCC was ordered to pay the defendants' costs of and incidental to the applications and the proceedings.

Orders

Orders of the court

1. Pursuant to rule 280(2) of the UCPR, the plaintiff’s Claim and Statement of Claim filed on 31 March 2021 are dismissed for want of prosecution.

2. The Application by the plaintiff (QBCC) filed on 5 August 2024 seeking leave to proceed pursuant to rule 389 is dismissed.

3. The plaintiff pay the defendants’ costs of and incidental to 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:	QBCC v Crocker & another [2024] QDC 140
PARTIES:	QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Plaintiff) v LEE ANTHONY CROCKER (First Defendant) and DENE WARD CROCKER (Second Defendant)
FILE NO:	729/21
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	11 October 2024
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2024
JUDGE:	Heaton KC DCJ
ORDERS:	1. Pursuant to rule 280(2) of the UCPR, the plaintiff’s Claim and Statement of Claim filed on 31 March 2021 are dismissed for want of prosecution. 2. The Application by the plaintiff (QBCC) filed on 5 August 2024 seeking leave to proceed pursuant to rule 389 is dismissed. 3. The plaintiff pay the defendants’ costs of and incidental to the applications and the proceedings.
CATCHWORDS:	Pleadings — Statement of claim — Striking out of statement of claim — Practice and procedure — Proceedings — Dismissal — Want of prosecution
LEGISLATION	Uniform Civil Procedure Rules 1999 (Qld) rr 5; 280; 292; 389 Queensland Building and Construction Commission Act 1991 (Qld) r 111C
CASES	Tyler v Custom Credit Corp Ltd [2000] QCA 178 Dempsey v Dorber [1990] 1 Qd R 418 Queensland Building and Construction Commission v Smith [2024] QDC 101 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372
COUNSEL:	A Tindall (Applicant) N Cooke (First and Second Defendants)