Stariha v K&T Earthmoving Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Stariha v K&T Earthmoving Pty Ltd [2023] QDC 133

PARTIES:

JOHN STARIHA

(appellant)

v

K&T EARTHMOVING PTY LTD

(ACN 144 074 546)

(respondent)

FILE NO:

2349/22

DIVISION:

District Court of Queensland

PROCEEDING:

Civil Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

23 June 2023

DELIVERED AT:

Maryborough

HEARING DATE:

5 May 2023

JUDGE:

Dearden DCJ

ORDER:

1.   The appeal be allowed.

2.   The orders of the Magistrates Court made on 26 August 2022 be set aside and in their place it be ordered that:

(i)       The plaintiff’s application filed 9 August 2022 be dismissed.

(ii)     The proceeding be dismissed.

CATCHWORDS:

MAGISTRATES – APPEAL – GROUNDS OF APPEAL – UCPR r.389 – whether the learned magistrate erred in finding that the plaintiff did not require leave to proceed pursuant to UCPR r.389 – whether an order by the learned magistrate constituted a step in the proceeding – whether the delivery of lists of documents constituted a step in the proceeding

CIVIL PROCEEDINGS – PROCEDURE – LACK OF PROGRESS – DISMISSAL OF PROCEEDINGS - where no effectual step had been taken for more than 2 years from the time the last step was taken – substantial delay in proceedings - delay wholly attributable to the respondent

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Artahs Pty Ltd v Gall Stanfield & Smith [2013] 2 Qd R 202

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

City Corp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420

Page v Central Queensland University [2006] QCA 478

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Ure v Robertson [2017] 2 Qd R 556

COUNSEL:

J R Moxon for the appellant
R J Bull for the respondent

SOLICITORS:

Shand Taylor Lawyers for the appellant
McInnes Wilson Lawyers for the respondent

Introduction

1. The appellant (the defendant in the Magistrates Court proceedings) appeals from the decision of the learned magistrate on 26 August 2022 ordering:-

   1. Pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the defendant’s signature on the request for trial date be dispensed with.

   2.   The proceeding be set down for trial at the earliest date convenient to the parties.

   3.   The defendant’s application filed 18 August 2022 be dismissed.

   4.   No order as to costs.

2. The defendant’s application filed 18 August, 2022 above was an application pursuant to UCPR r.280 seeking the dismissal of the proceedings for want of prosecution, or alternatively, in the exercise of the Magistrates Court’s implied power to dismiss the proceeding as an abuse of process.

3. Grounds of appeal

   1. The learned magistrate erred in dispensing with the defendant’s signature on the request for trial date (pursuant to r.469 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)), because his Honour should have found that the plaintiff required leave to proceed pursuant to r.389 in order to…