Thornton v Russo - [2004] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

Thornton v Russo & Anor [2004] QDC 035

PARTIES:

BARRY THORNTON

Plaintiff

v

NICK RUSSO

First Defendant

and

EQUUSCORP PTY LTD (formerly EQUUS FINANCIAL SERVICES LIMITED) ACN 006 012 344

Second Defendant

FILE NO/S:

Plaint 82/1993

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2003

JUDGE:

McGill DCJ

ORDER:

Action dismissed for want of prosecution. Cross application for leave to proceed dismissed. Plaintiff to pay defendants’ costs of action including both applications to be assessed.

CATCHWORDS:

PRACTICE – Want of Prosecution – defamation action – action 10½ years old – no step for 2⅓ years – not close to trial – no excuse for delay – some prejudice – action dismissed.

UCPR r 389.

Amos v Barbi [1999] 1 Qd R 342 – followed.
Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 – followed.
Cooper v Hopgood & Ganim [1999] 2 Qd R 113 – applied.
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380 – considered.
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 – followed.
Phillips v Minerals Resources Developments Pty Ltd [1983] 2 Qd R 138 – followed.
Quinlan v Rothwell [2002] 1 Qd R 647 – applied.
Tyler v Custom Credit Corp Ltd [2000] QCA 178 – applied.

COUNSEL:

D R Cooper SC for plaintiff
M J Burns for the defendants

SOLICITORS:

Lees Marshall Warnick for the plaintiff
Gadens Lawyers for the defendants

In this matter there are cross-applications to dismiss the action for want of prosecution, and by the plaintiff for leave to proceed under r 389. The plaintiff’s application was filed in response to the defendants’ application. The action was commenced by a plaint filed on 12 January 1993. It alleges that the plaintiff was defamed by a letter sent on 1 October 1992, by the first defendant on behalf of the second defendant to one Anthony Johnson, and circulated to a number of other individuals capable of identification on some date not alleged in the pleading, but presumably in about October 1992. On the same day a plaint was filed by a company, GWA Pty Ltd, claiming that the same letter had also defamed it. To a large extent developments in relation to the two matters proceeded in parallel. What happened in the actions appears in the following chronology.

Chronology

12 January 1993 Plaints filed.

8 March 1993 Entries of appearance and defence filed by both defendants.

18 March 1993 Request for further and better particulars of Thornton plaint.

22 March 1993 Request for further and better particulars of both defences.

8 April 1993 Further and better particulars of Thornton plaint filed.

11 May 1993 Further and better particulars of both defences delivered.

17 May 1993 Amended plaints filed in both actions.

10 April 1996 Notice of intention to proceed delivered by both plaintiffs.

14 May 1996 Further amended plaints filed in…

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.

Continue reading Thornton v Russo

Details

AGLC: Thornton v Russo [2004] QDC 35
Case: [2004] QDC 35
Decision Date: 17 March 2004

CaseChat Overview and Summary

The case of Thornton v Russo involved a defamation action that had languished for over ten and a half years. The plaintiff, Thornton, sought to hold the defendants, Russo, liable for defamatory statements. The action had not seen any progress for two and a third years, and the matter was nowhere near a trial stage. The defendants moved to dismiss the case for want of prosecution, arguing that the plaintiff had failed to diligently pursue the case. Thornton countered by submitting that there was no significant prejudice to the defendants and that the delay was excusable. The court was required to determine whether the plaintiff's delay was so substantial that it warranted dismissal of the action and whether any prejudice to the defendants outweighed the need to see justice served.

The court held that the plaintiff's delay in prosecuting the action was indeed significant, especially considering the length of time elapsed and the lack of any steps taken for over two years. The court found that the plaintiff had not provided a sufficient explanation for the delay and that the action was not close to trial, which was a critical factor in determining whether the delay was justified. Although Thornton argued that the defendants had not suffered any substantial prejudice, the court was not persuaded that the delay was excusable. The court concluded that the delay was unjustifiable and that the action should be dismissed for want of prosecution.

Consequently, the court dismissed the plaintiff's action for lack of prosecution. The cross-application for leave to proceed was also dismissed. The plaintiff was ordered to pay the defendants' costs of the action, including the costs of both applications, to be assessed. This decision underscores the importance of diligence in pursuing legal actions and the courts' commitment to ensuring that cases are handled within a reasonable timeframe.

Orders

Orders of the court

Action dismissed for want of prosecution. Cross application for leave to proceed dismissed. Plaintiff to pay defendants’ costs of action including both applications to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Thornton v Russo & Anor [2004] QDC 035
PARTIES:	BARRY THORNTON Plaintiff v NICK RUSSO First Defendant and EQUUSCORP PTY LTD (formerly EQUUS FINANCIAL SERVICES LIMITED) ACN 006 012 344 Second Defendant
FILE NO/S:	Plaint 82/1993
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	17 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 2003
JUDGE:	McGill DCJ
ORDER:	Action dismissed for want of prosecution. Cross application for leave to proceed dismissed. Plaintiff to pay defendants’ costs of action including both applications to be assessed.
CATCHWORDS:	PRACTICE – Want of Prosecution – defamation action – action 10½ years old – no step for 2⅓ years – not close to trial – no excuse for delay – some prejudice – action dismissed. UCPR r 389. Amos v Barbi [1999] 1 Qd R 342 – followed. Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 – followed. Cooper v Hopgood & Ganim [1999] 2 Qd R 113 – applied. Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2002] QCA 380 – considered. National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 – followed. Phillips v Minerals Resources Developments Pty Ltd [1983] 2 Qd R 138 – followed. Quinlan v Rothwell [2002] 1 Qd R 647 – applied. Tyler v Custom Credit Corp Ltd [2000] QCA 178 – applied.
COUNSEL:	D R Cooper SC for plaintiff M J Burns for the defendants
SOLICITORS:	Lees Marshall Warnick for the plaintiff Gadens Lawyers for the defendants

12 January 1993	Plaints filed.
8 March 1993	Entries of appearance and defence filed by both defendants.
18 March 1993	Request for further and better particulars of Thornton plaint.
22 March 1993	Request for further and better particulars of both defences.
8 April 1993	Further and better particulars of Thornton plaint filed.
11 May 1993	Further and better particulars of both defences delivered.
17 May 1993	Amended plaints filed in both actions.
10 April 1996	Notice of intention to proceed delivered by both plaintiffs.
14 May 1996	Further amended plaints filed in…