Till v Nominal Defendant - [2011] QSC 351

SUPREME COURT OF QUEENSLAND

CITATION:

Till v Nominal Defendant [2011] QSC 351

PARTIES:

PETER TILL

(Plaintiff)

v

NOMINAL DEFENDANT

(Defendant)

FILE NO/S:

S73 of 1997

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

28 November 2011

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

16 November 2011

JUDGE:

McMeekin J

ORDER:

1. Proceedings are struck out.

2. Plaintiff to pay Defendant’s costs of the proceedings including reserved costs and costs of this application.

CATCHWORDS:

PROCEDURE - SUPREME COURT PROCEDURE -
Application to Dismiss Proceeding for Want of Prosecution -

- Where proceedings over 14 years old – Where plaintiff’s conduct and attitude has contributed considerably to delay – Where plaintiff impecunious and acting alone - Whether balance of factors favour proceedings be struck out

Uniform Civil Procedure Rules 1999 (Qld)

Basha v Basha [2010] QCA 123

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

Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited [1999] QSC 372

Page v Central Queensland University [2006] QCA 478

Quinlan v Rothwell [2002] 1 Qd R 647

Ridolfi v Rigato Farms Pty Ltd [2000] QCA 292

Till v Nominal Defendant [1999] QCA 490

Till v Nominal Defendant [2010] QSC 121

Tyler v Custom Credit Corporation Pty Ltd [2000] QCA 178

COUNSEL:

Plaintiff in person

R Dickson for the defendant

SOLICITORS:

Plaintiff in person

Walsh Halligan Douglas for the defendant

McMeekin J: This is an application by the Nominal Defendant to strike out these proceedings for want of prosecution. The application is brought in the inherent jurisdiction of the Court to protect its own processes from abuse.[1]
[1]Quinlan v Rothwell [2002] 1 Qd R 647 at [30], de Jersey CJ and Mackenzie J agreeing. See also Page v Central Queensland University [2006] QCA 478 at [15], per Keane JA, Williams JA and White J agreeing

Peter Till claims damages for negligence. He says that he was injured on 10 May 1996 when a motor cycle he was riding was struck by a utility motor vehicle. The vehicle remains unidentified.

An action was commenced on 28 May 1997. The Nominal Defendant initially admitted liability but subsequently sought to withdraw its admission. It was held entitled to do so by the Court of Appeal on 26 November 1999.[2] An unsuccessful mediation occurred in December 2002. A Request for Trial Date was signed by the defendant’s solicitors in May 2003. The plaintiff’s side did not respond. In June 2009 the defendant applied to have the matter set down for trial. The proceedings came on for hearing before me on 31 August 2009. The plaintiff’s case was opened, certain documents were tendered (on an undertaking to call necessary medical witnesses) and the plaintiff called to give evidence. His cross examination is not yet concluded.
[2][1999] QCA 490

On 2^nd September 2009 I adjourned the trial, then into its third day, on the application of Mr Till’s counsel, Mr Mullins. Mr Mullins had become concerned through the trial that…

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 Till v Nominal Defendant

Details

AGLC: Till v Nominal Defendant [2011] QSC 351
Case: [2011] QSC 351
Decision Date: 28 November 2011

CaseChat Overview and Summary

The case involved a plaintiff, Till, against a nominal defendant, where the proceedings had been ongoing for over 14 years. The dispute centred around whether the balance of factors justified striking out the proceedings due to significant delays attributed largely to the plaintiff's conduct and attitude. Additionally, the plaintiff was impecunious and acting pro se.

The central legal issue before the court was whether the plaintiff's conduct and attitude, coupled with the significant delay and his financial incapacity, warranted the striking out of the proceedings. The court had to consider the public interest in the final resolution of disputes, the degree of fault attributable to the plaintiff, and the extent of prejudice to the defendant if the proceedings were allowed to continue.

The court concluded that the plaintiff's conduct and attitude had considerably contributed to the delay and that he was impecunious and acting without legal representation. These factors, along with the significant length of time the proceedings had been pending, led the court to determine that the balance of factors favoured striking out the proceedings. The plaintiff's impecunious status and solitary representation did not weigh in his favour, given the extensive delay attributable to him. The court also noted that the plaintiff had not demonstrated a genuine attempt to expedite the proceedings.

The court ordered that the proceedings be struck out and that the plaintiff pay the defendant's costs of the proceedings, including reserved costs and the costs of the application.

Orders

Orders of the court

1. Proceedings are struck out.

2. Plaintiff to pay Defendant’s costs of the proceedings including reserved costs and costs of this application.

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:	Till v Nominal Defendant [2011] QSC 351
PARTIES:	PETER TILL (Plaintiff) v NOMINAL DEFENDANT (Defendant)
FILE NO/S:	S73 of 1997
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Mackay
DELIVERED ON:	28 November 2011
DELIVERED AT:	Supreme Court Rockhampton
HEARING DATE:	16 November 2011
JUDGE:	McMeekin J
ORDER:	1. Proceedings are struck out. 2. Plaintiff to pay Defendant’s costs of the proceedings including reserved costs and costs of this application.
CATCHWORDS:	PROCEDURE - SUPREME COURT PROCEDURE - Application to Dismiss Proceeding for Want of Prosecution - - Where proceedings over 14 years old – Where plaintiff’s conduct and attitude has contributed considerably to delay – Where plaintiff impecunious and acting alone - Whether balance of factors favour proceedings be struck out Uniform Civil Procedure Rules 1999 (Qld) Basha v Basha [2010] QCA 123 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited [1999] QSC 372 Page v Central Queensland University [2006] QCA 478 Quinlan v Rothwell [2002] 1 Qd R 647 Ridolfi v Rigato Farms Pty Ltd [2000] QCA 292 Till v Nominal Defendant [1999] QCA 490 Till v Nominal Defendant [2010] QSC 121 Tyler v Custom Credit Corporation Pty Ltd [2000] QCA 178
COUNSEL:	Plaintiff in person R Dickson for the defendant
SOLICITORS:	Plaintiff in person Walsh Halligan Douglas for the defendant