Tyler v Custom Credit Corp Ltd & Ors

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

DOUGLAS KEITH TYLER
(respondent)
v
CUSTOM CREDIT CORPORATION LIMITED
(appellant)
BREENS (a firm)
(first third party)
GADENS RIDGEWAY (a firm)
(second third party)

FILE NO/S:

Appeal No 9466 of 1999
SC No 4944 of 1986

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2000

JUDGES:

McMurdo P, McPherson JA, Atkinson J
Joint reasons for judgment of McMurdo P and McPherson JA; separate reasons of Atkinson J, concurring as to the order made.

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS

Uniform Civil Procedure Rules 1999, r 389

Birkett v James [1978] AC 297, considered
Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Vic SC (Appeal Div), No 4901 of 1989, 9 September 1994, considered and distinguished
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Cooper v Hopgood & Ganim [1999] 2 QdR 113, applied
Dempsey v Dorber [1990] 1 QdR 418, considered
Hoy v Honan CA No 4058 of 1996, 19 August 1997, considered
Jeogla v ANZ Bank [1999] NSWSC 563, considered
Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992, considered

Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405, considered

COUNSEL:

G A Thompson SC for the appellant
R G Bain QC for the respondent

SOLICITORS:

Mallesons Stephen Jaques for the appellant
Crouch & Lyndon Solicitors for the respondent
Allen Allen & Helmsley for the first and second third parties

1. McMURDO P AND McPHERSON JA:  We agree with the reasons of Atkinson J, which we have had the advantage of reading.  The appeal should be dismissed with costs.

1. ATKINSON J:  When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (“UCPR”) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.[1]  These include:

   [1]Cooper v Hopgood & Ganim [1999] 2 QdR 113 at 119.

(1)how long ago the events alleged in the statement of claim occurred[2] and what delay there was before the litigation was commenced;

[2]Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord Griffiths; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Supreme Court of Victoria, Appeal Div, No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No 4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.

(2)how long ago the litigation was commenced or causes of action…