Thomson v Wenn

[2024] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Thomson v Wenn [2024] QDC 221

THOMSON

(applicant)

v WENN

(respondent) 1754 of 22

Civil Application

District Court at Brisbane

12 December 2024 Brisbane

PARTIES:

FILENO:

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVEREDON:

DELIVEREDAT:

HEARINGDATE:

4 October 2024

JUDGE:

Clare SC DCJ

ORDER:

1. The respondents have leave to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld)

2. The Originating Application is dismissed pursuant to rule 371 of the Uniform Civil Procedure Rules 1999 (Qld)

3.   The applicant has until 24 December 2024 to provide written argument on costs. In the event that the

applicant’s submissions on costs are not received, by the court and the respondents solicitors, by close of business on 24 December 2024, the applicant is to pay the respondent’s costs.

CATCHWORDS:

CIVIL LAW —SUCCESSION – FAMILY PROVISION

AND MAINTENANCE – where application under s 41 of the Succession Act 1981 (Qld) for proper maintenance and support – where no provision is made – where claim by adult child – modest estate –

SUCCESSION – FAMILY PROVISION – DELAY – where

failure to provide supporting affidavit – where application stayed by 2 year delay – where failure to show a viable claim

SUCCESSION – FAMILY PROVISION – where application to dismiss under r 371 of UCPR

LEGISLATION:

Succession Act 1981 (Qld) s 41

Uniform Civil Procedure Rules 1999 (Qld) rules 5 and 389 (2)

CASES:

Legal Practitioners Conduct Board v Thomson [2009] SASC 149

Singer v Berghouse (1994) (No 2) 181 CLR 201

Thomson v Smith [2005] QCA 446

COUNSEL:

The applicant appeared for herself

Mr P Hackett for the respondent

SOLICITORS:

The applicant appeared for herself Wilson Lawyers for the respondent

Introduction

1. On 22 July 2022, the applicant filed an Originating Application for family provision under s 41 of the Succession Act 1981 (Qld). She then allowed the claim to go stale. The respondents are the executors for the estate of Joyce Lloyd. This is their application to dismiss pursuant to rule 371 Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).

2. The Originating Application was filed and served without any supporting affidavit. Accordingly, the commencement of the application breached rule 28 UCPR and Practice Direction 8 of 2021. That was almost two and a half years ago. The breach was never remedied, and the applicant took no further step in the action. Since the second anniversary on 21 July 2024, the proceedings have been stayed by operation of r 389(2) UCPR.

3. The court may impose sanctions under rule 5 for non-compliance with the rules.¹ Rule 371 expressly confers a discretion to dismiss an application where there is a failure to comply with an “order” of the court. An order is defined in the dictionary in Schedule 3 of the rules to include a Practice Direction. The breach of the Practice Direction therefore enlivens the discretion to dismiss the Originating Application under rule 371. The ongoing failure to produce evidence or otherwise advance the

¹ Rule 5(4) UCPR.