Ure v Robertson - [2017] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

Ure v Robertson [2017] QCA 20

PARTIES:

LYNNE KATHLEEN URE
v
PATRICIA JUNE ROBERTSON
(appellant)
RONALD URE
(respondent)
SUMMERHILL PROPERTY DEVELOPMENTS PTY LTD
(not a party to the appeal)
ACN 010 558 460
(not a party to the appeal)

FILE NO/S:

Appeal No 10555 of 2016
SC No 2634 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2016] QSC 210

DELIVERED ON:

28 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2017

JUDGES:

Gotterson and Morrison JJA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the appellant filed a claim in March 2007 and the respondent filed a counterclaim in September 2010 – where the appellant provided a list of documents in March 2015 without obtaining an order of the Court – where UCPR r 389 provided that if no step was taken in a proceeding for two years, a new step could not be taken without an order of the Court – where UCPR r 371(2)(d) empowered the Court to declare a step taken in breach of the UCPR to be effectual – where the respondent applied for an order dismissing the claim for want of prosecution and declaring ineffectual the delivery of the list of documents – where the primary judge dismissed the claim and counterclaim for want of prosecution – whether the delivery of the list of documents constituted a step having been taken within the meaning of r 389(2) – whether the discretion of the primary judge miscarried

Bankruptcy Act 1966 (Cth), s 58(3), s 60(2)
Rules of the Supreme Court, O 90 r 9, O 93 r 17, O 93 r 18
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 371, r 389

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Luka Brewery v Grundmann [1985] 2 Qd R 204, cited
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444, considered
Tyler v Custom Credit Corp Ltd[2000] QCA 178, cited
Ure v Robertson [2016] QSC 210, cited

COUNSEL:

M D Evans for the appellant
B T Porter QC, with G Dietz, for the respondent

SOLICITORS:

HopgoodGanim Lawyers for the appellant
Tucker & Cowen Solicitors for the respondent

GOTTERSON JA: I agree with the orders proposed by Bond J and with the reasons given by his Honour.
MORRISON JA: I have read the reasons of Bond J and agree with those reasons and the orders his Honour proposes.
BOND J:

Introduction

By order made on 16 September 2016 the learned primary judge dismissed for want of prosecution –
(a)the claim brought by Mrs Ure (as plaintiff) against Ms Robertson (as defendant); and also
(b)the counterclaim brought by…

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 Ure v Robertson

Details

AGLC: Ure v Robertson [2017] QCA 20
Case: [2017] QCA 20
Decision Date: 28 February 2017

CaseChat Overview and Summary

In Ure v Robertson, the dispute involved the appellant's claim filed in March 2007, to which the respondent responded with a counterclaim in September 2010. The appellant later provided a list of documents in March 2015, but did not obtain an order from the Court as required by UCPR r 389. This rule mandates that if no step is taken in a proceeding for two years, a new step cannot be taken without the Court's order. UCPR r 371(2)(d) further empowers the Court to declare any step taken in breach of the UCPR to be ineffectual. The respondent subsequently applied for an order dismissing the claim for want of prosecution and declaring the delivery of the list of documents ineffectual. The primary judge dismissed both the claim and counterclaim for want of prosecution, leading to the appellant's appeal.

The central legal issues revolved around whether the delivery of the list of documents constituted a step within the meaning of r 389(2), and whether the primary judge's discretion was exercised correctly. The appellant argued that the delivery of the list of documents did not constitute a step, and that the primary judge had misapplied the discretionary considerations. The court needed to determine if the primary judge's decision to dismiss the proceedings was justified under the relevant rules and principles of judicial discretion.

The court found that the delivery of the list of documents indeed constituted a step within the meaning of UCPR r 389(2). The court further held that the primary judge's exercise of discretion was not erroneous, as it was based on the appellant's prolonged inactivity and the respondent's reasonable expectations of progress. The court found no miscarriage of discretion, affirming the primary judge's decision to dismiss both the claim and counterclaim for want of prosecution.

The court dismissed the appeal with costs, upholding the primary judge's decision. The respondent was awarded costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Ure v Robertson [2017] QCA 20
PARTIES:	LYNNE KATHLEEN URE v PATRICIA JUNE ROBERTSON (appellant) RONALD URE (respondent) SUMMERHILL PROPERTY DEVELOPMENTS PTY LTD (not a party to the appeal) ACN 010 558 460 (not a party to the appeal)
FILE NO/S:	Appeal No 10555 of 2016 SC No 2634 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2016] QSC 210
DELIVERED ON:	28 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2017
JUDGES:	Gotterson and Morrison JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the appellant filed a claim in March 2007 and the respondent filed a counterclaim in September 2010 – where the appellant provided a list of documents in March 2015 without obtaining an order of the Court – where UCPR r 389 provided that if no step was taken in a proceeding for two years, a new step could not be taken without an order of the Court – where UCPR r 371(2)(d) empowered the Court to declare a step taken in breach of the UCPR to be effectual – where the respondent applied for an order dismissing the claim for want of prosecution and declaring ineffectual the delivery of the list of documents – where the primary judge dismissed the claim and counterclaim for want of prosecution – whether the delivery of the list of documents constituted a step having been taken within the meaning of r 389(2) – whether the discretion of the primary judge miscarried Bankruptcy Act 1966 (Cth), s 58(3), s 60(2) Rules of the Supreme Court, O 90 r 9, O 93 r 17, O 93 r 18 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 371, r 389 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Luka Brewery v Grundmann [1985] 2 Qd R 204, cited Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444, considered Tyler v Custom Credit Corp Ltd[2000] QCA 178, cited Ure v Robertson [2016] QSC 210, cited
COUNSEL:	M D Evans for the appellant B T Porter QC, with G Dietz, for the respondent
SOLICITORS:	HopgoodGanim Lawyers for the appellant Tucker & Cowen Solicitors for the respondent