Sparkman's Electrical Pty Ltd v Habershon - [2017] QSC 156

SUPREME COURT OF QUEENSLAND

CITATION:

Sparkman’s Electrical Pty Ltd & Ors v Habershon & Anor [2017] QSC 156

PARTIES:

SPARKMAN’S ELECTRICAL PTY LTD ACN 060 161 828
(Plaintiff/Respondent)

And

JOHN ANTHONY JEREMY
(Plaintiff/Respondent)

And

KYLIE GAYE JEREMY
(Plaintiff/Respondent)

v

JOHN BARRIE HABERSHON
(Defendant/Applicant)

And

COMPLETE TECHNICAL SERVICES GROUP PTY LTD ACN 125 403 965
(Defendant/Applicant)

FILE NO/S:

S50 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

26 July 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

17 July 20117

JUDGE:

McMeekin J

ORDER:

1.      The application to strike out is refused.

2.      The plaintiffs are given leave to proceed.

3.      The plaintiffs are ordered to pay the defendants’ costs.

4.      The parties are directed to confer within seven days with a view to agreeing on appropriate further directions as to the conduct of the proceedings in light of these reasons.

5.      If such agreement is reached the plaintiffs are directed to provide to my associate a draft order agreed by the parties on or before 4pm on 2 August 2017.

6.      If agreement cannot be reached:

(a)    the parties are directed to file such submissions as they may be advised as to the directions that ought to be made on or before 4pm on 2 August 2017.

(b)    Unless submissions are made to the contrary the appropriate orders will be determined on the papers.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISIONS – WANT OF PROSECUTION OR LACK OF PROGRESS – where the defendants apply to strike out the proceedings for want of prosecution – where the proceedings concern a claim for loss of profits occasioned to the plaintiffs by reason of an alleged breach of an employment contract – where the plaintiff gave notice of an intention to take a further step in the proceedings one week short of two years since the last disclosure – whether notice of intention to proceed amounts to taking a further step in the proceedings – whether the last step was the mediation undertaken in December 2014 – whether the last step was the provision of disclosure carried out in June 2015 – whether the proceedings be struck out for want of prosecution.

Uniform Civil Procedure Rules r 5, r 389

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, considered

Barker v Wingo (1972) 407 US 514 at 532, cited

GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, cited

Kaats v Caelers [1966] Qd R 482, applied

Kanyilmaz v Nominal Defendant (Queensland) [2000] QSC 180, cited

Maxwell v Keun [1928] 1 KB 645, considered Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214, cited

South Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered

Tyler v Custom Credit Corp Ltd [2000] QCA 178, considered

Wright v Ansett Transport Industries…

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: [2017] QSC 156
Decision Date: 26 July 2017

CaseChat Overview and Summary

Sparkman's Electrical Pty Ltd, the plaintiff, filed a claim against Habershon, the defendant, for losses incurred due to an alleged breach of an employment contract. The case was heard in the Supreme Court of New South Wales, where the defendants moved to dismiss the case for lack of progress. The defendants argued that the proceedings should be struck out because the plaintiff had not taken any steps in the case for two years, the statutory period under the Uniform Civil Procedure Rules. Specifically, the defendants claimed that the last step in the proceedings was either the mediation held in December 2014 or the provision of disclosure in June 2015. The plaintiff notified the defendants of its intention to proceed with the case one week before the two-year period expired, but the defendants argued that this did not constitute a step in the proceedings.

The court was required to decide whether the plaintiff's notice of intention to proceed constituted a step in the proceedings and, if not, whether the proceedings should be dismissed for lack of progress. The court noted that the notice of intention to proceed did not amount to a step in the proceedings, as it did not involve any substantive action or decision by the plaintiff. The court also considered the defendants' argument that the last step in the proceedings was the mediation in December 2014 or the provision of disclosure in June 2015. However, the court found that the mediation was not a step in the proceedings because it was not a formal step required by the court rules, and the provision of disclosure was not the last step because the plaintiff had taken other steps since then, such as filing an application for an order to strike out a third party.

The court refused the application to strike out the proceedings for want of prosecution, noting that the plaintiff had taken steps in the proceedings since the last step and that the defendants had not shown any prejudice caused by the delay. The court also noted that the parties had made some progress in the case, such as filing written submissions on the application to strike out. The court ordered the plaintiff to pay the defendants' costs and directed the parties to confer within seven days to agree on further directions for the conduct of the proceedings. If the parties could not reach an agreement, they were directed to file submissions on the appropriate directions to be made, and the court would determine the orders on the papers unless submissions were made to the contrary.

Orders

Orders of the court

1. The application to strike out is refused.

2. The plaintiffs are given leave to proceed.

3. The plaintiffs are ordered to pay the defendants’ costs.

4. The parties are directed to confer within seven days with a view to agreeing on appropriate further directions as to the conduct of the proceedings in light of these reasons.

5. If such agreement is reached the plaintiffs are directed to provide to my associate a draft order agreed by the parties on or before 4pm on 2 August 2017.

6. If agreement cannot be reached:

(a) the parties are directed to file such submissions as they may be advised as to the directions that ought to be made on or before 4pm on 2 August 2017.

(b) Unless submissions are made to the contrary the appropriate orders will be determined on the papers.

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:	Sparkman’s Electrical Pty Ltd & Ors v Habershon & Anor [2017] QSC 156
PARTIES:	SPARKMAN’S ELECTRICAL PTY LTD ACN 060 161 828 (Plaintiff/Respondent) And JOHN ANTHONY JEREMY (Plaintiff/Respondent) And KYLIE GAYE JEREMY (Plaintiff/Respondent) v JOHN BARRIE HABERSHON (Defendant/Applicant) And COMPLETE TECHNICAL SERVICES GROUP PTY LTD ACN 125 403 965 (Defendant/Applicant)
FILE NO/S:	S50 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	26 July 2017
DELIVERED AT:	Rockhampton
HEARING DATE:	17 July 20117
JUDGE:	McMeekin J
ORDER:	1. The application to strike out is refused. 2. The plaintiffs are given leave to proceed. 3. The plaintiffs are ordered to pay the defendants’ costs. 4. The parties are directed to confer within seven days with a view to agreeing on appropriate further directions as to the conduct of the proceedings in light of these reasons. 5. If such agreement is reached the plaintiffs are directed to provide to my associate a draft order agreed by the parties on or before 4pm on 2 August 2017. 6. If agreement cannot be reached: (a) the parties are directed to file such submissions as they may be advised as to the directions that ought to be made on or before 4pm on 2 August 2017. (b) Unless submissions are made to the contrary the appropriate orders will be determined on the papers.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISIONS – WANT OF PROSECUTION OR LACK OF PROGRESS – where the defendants apply to strike out the proceedings for want of prosecution – where the proceedings concern a claim for loss of profits occasioned to the plaintiffs by reason of an alleged breach of an employment contract – where the plaintiff gave notice of an intention to take a further step in the proceedings one week short of two years since the last disclosure – whether notice of intention to proceed amounts to taking a further step in the proceedings – whether the last step was the mediation undertaken in December 2014 – whether the last step was the provision of disclosure carried out in June 2015 – whether the proceedings be struck out for want of prosecution. Uniform Civil Procedure Rules r 5, r 389 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, considered Barker v Wingo (1972) 407 US 514 at 532, cited GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, cited Kaats v Caelers [1966] Qd R 482, applied Kanyilmaz v Nominal Defendant (Queensland) [2000] QSC 180, cited Maxwell v Keun [1928] 1 KB 645, considered Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214, cited South Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered Tyler v Custom Credit Corp Ltd [2000] QCA 178, considered Wright v Ansett Transport Industries…