DANIEL BRIAN QUINLAN (plaintiff/appellant) v GARRY ST CLAIR ROTHWELL (first defendant/first respondent) AUSTRALIAN INSTITUTE OF VALUERS AND LAND ADMINISTRATORS INCORPORATED (second defendant/second respondent)
FILE NO/S:
Appeal No 8426 of 2000 SC No 1683 of 1990
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 May 2001
DELIVERED AT:
Brisbane
HEARING DATE:
24 April 2001
JUDGES:
de Jersey CJ, Thomas JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1) Allow the appeal with costs;
2) Set aside the order of 30 August 2000; and replace it with an order –
a) That the application for dismissal be dismissed;
b) That the application for further disclosure be adjourned to a date to be fixed; and
c) That the costs of and incidental to the application be costs in the cause.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – OTHER MATTERS – where significant delay by both parties in conducting action for damages for defamation – where past failure by appellant to comply with rules of disclosure – where appellant had complied with latest order for disclosure
PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE –principles under Uniform Civil Procedure Rules re dismissals for want of prosecution or for non compliance with directions or rules of court – increasing importance of expeditious resolution of litigation – however broad brush dismissal for long delay inappropriate – need for analysis of actual likely effect on trial - where action dismissed at a time when parties nearly ready for trial – application of r 5, 280 and 371 Uniform Civil Procedure Rules – consideration of tests in Cooper v Hopgood & Ganim
P D McMurdo QC, with P J Davis for the appellant P D T Applegarth SC for the first and second respondents
SOLICITORS:
Holland & Holland (Brisbane) acting as Town Agents for Nikola Velcie & Associates (NSW) for the appellant Minter Ellison for the first and second respondents
de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Thomas JA. I agree with the orders His Honour proposes, and with his reasons.
The dismissal ordered by the learned primary judge cannot be sustained specifically by reference to rule 280 of the Uniform Civil Procedure…
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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AGLC
Quinlan v Rothwell [2001] QCA 176
Case
[2001] QCA 176
Decision Date
CaseChat Overview and Summary
The appeal in Quinlan v Rothwell was heard by the Queensland Court of Appeal, which involved a significant dispute over defamation damages. The lower court had dismissed the proceeding for want of prosecution due to delays by both parties, and the appellant, Quinlan, had failed to comply with disclosure rules in the past. This appeal challenged the dismissal and sought to address the procedural delays.
The legal issues that the court had to decide included whether the dismissal was justified under the Uniform Civil Procedure Rules and whether the dismissal was appropriate given the context of the case, particularly as both parties were nearly ready for trial. The court had to balance the principles of expeditious resolution of litigation with the need for a nuanced analysis of the likely effects on the trial. The court also considered the tests established in Cooper v Hopgood & Ganim to determine if the dismissal was proportionate and justifiable.
In its reasoning, the Court of Appeal held that the dismissal was inappropriate as it occurred at a time when the parties were nearly ready for trial. The court noted that while delays were significant, the dismissal was not warranted without a detailed analysis of the likely impact on the trial proceedings. The court found that a broader brush dismissal without such an analysis was inappropriate. It also considered the appellant's compliance with the latest disclosure order as a mitigating factor. Consequently, the court allowed the appeal, set aside the dismissal order, and substituted it with an order dismissing the application for dismissal and adjourning the application for further disclosure. The appeal was allowed with costs, and the costs of the application were made costs in the cause.
The final orders of the court were to allow the appeal with costs, set aside the order of 30 August 2000, and replace it with an order dismissing the application for dismissal, adjourning the application for further disclosure, and making the costs of the application costs in the cause.
Orders
Orders of the court
1) Allow the appeal with costs;
2) Set aside the order of 30 August 2000; and replace it with an order –
a) That the application for dismissal be dismissed;
b) That the application for further disclosure be adjourned to a date to be fixed; and
c) That the costs of and incidental to the application be costs in the cause.