Usher v Palmer - [2023] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Usher v Palmer [2023] QDC 003

PARTIES:

Jonathan David Usher

(plaintiff)

v
Ben Robert Palmer

(defendant)

FILE NO/S:

2306/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

19 January 2023

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2022. Further written submissions received 26 and 27 September 2022.

JUDGE:

Byrne KC DCJ

ORDERS:

1.     The defendant’s application is granted.

2.     The proceeding numbered 2306/20 and commenced in the Supreme Court on 20 December 2018 is dismissed.

3.     The plaintiff’s cross-applications are refused.

4.     The costs of the applications before me are reserved.

5.     I will hear the parties as to the costs of the proceeding.

CATCHWORDS:

PROCEDURE – WANT OF PROSECUTION – LACK OF PROGRESS – CROSS APPLICATION – LEAVE TO PROCEED – where the plaintiff filed a claim for defamation – where the proceedings has been delayed for two years – where the defendant filed an application that the Claim be dismissed for want of prosecution pursuant to s 22 of the Civil Proceedings Act 2011 – where the plaintiff cross-applied for orders dismissing the defendant’s application and seeking leave to continue with the proceeding pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 – whether two years have passed since the last step was taken in the proceedings – whether the filing of an application for default assessment constitutes a step in the proceedings – whether discretion should be exercised to dismiss the Claim – whether leave should be granted for the plaintiff to take a further step – whether the plaintiff had an obligation to take a step in the proceedings not required by the Rules – whether COVID-19 restrictions contributed to the delay in the proceedings – whether the delay in proceeding to trial has affected the efficacy of cross-examination – whether costs should be awarded to the parties

LEGISLATION:

Civil Proceedings Act 2011 (Qld)

Supreme Court of Queensland Act 1995 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592
Dempsey v Dorber [1990] 1 Qd R 418
Quinlan v Rothwell [2002] 1 Qd R 647
Robinson v Laws & Anor [2007] QSC 152
Smiley v Watson [2002] 1 Qd R 560
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

COUNSEL:

Mr. R Andersen KC for the plaintiff.
Mr A. Nelson for the defendant.

SOLICITORS:

The plaintiff is appearing for himself.
Australian Law Partners for the defendant.

Background

On 20 December 2018 the plaintiff filed a Claim seeking damages of $800,000.00, including aggravated damages, from the defendant for defamation. That Claim was necessarily commenced in the Supreme Court.
A detailed outline of the history of the matter is not necessary, although some detail is required.
On 6 September 2019, the defendant filed an application for an order dispensing…

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 Usher v Palmer

Details

AGLC: Usher v Palmer [2023] QDC 3
Case: [2023] QDC 3
Decision Date: 19 January 2023

CaseChat Overview and Summary

Usher v Palmer is a case concerning the dismissal of a claim for defamation due to a lack of prosecution. The plaintiff, Usher, filed a claim against the defendant, Palmer, in the Supreme Court of Queensland. The dispute centres around the delay in Usher's proceedings, which have been inactive for two years, prompting Palmer to apply for the dismissal of Usher's claim under section 22 of the Civil Proceedings Act 2011. In response, Usher cross-applied for leave to continue with the proceedings and to dismiss Palmer's application under rule 389(2) of the Uniform Civil Procedure Rules 1999. The primary issues for the court were whether Usher's delay constituted a lack of prosecution warranting dismissal, whether COVID-19 restrictions should be considered in assessing the delay, and if Usher's cross-application should be granted.

The court examined whether Usher's two-year inactivity in the proceedings qualified as a lack of prosecution under the Civil Proceedings Act. It also considered if the filing of an application for default assessment by Usher constituted a step in the proceedings. The court explored Usher's obligations to take steps in the proceedings beyond those mandated by the Rules, and whether COVID-19 restrictions had a mitigating effect on the delay. Additionally, the court assessed whether the delay affected the efficacy of cross-examination, and whether costs should be awarded to the parties. The court held that Usher's inactivity amounted to a lack of prosecution, and the COVID-19 restrictions did not sufficiently justify the delay. The court also found that Usher had an obligation to take steps in the proceedings beyond those required by the Rules. Consequently, the court dismissed Palmer's application and refused Usher's cross-application.

The court granted Palmer's application for dismissal of Usher's claim, ruling that Usher's inactivity for two years constituted a lack of prosecution. The court found that Usher's filing of an application for default assessment did not constitute a step in the proceedings, and that Usher had additional obligations to take steps that were not mandated by the Rules. The court determined that COVID-19 restrictions did not sufficiently mitigate the delay, and that Usher's inactivity had not affected the efficacy of cross-examination. The court dismissed Usher's cross-applications, reserving the costs of the applications before the court and directing that the parties be heard regarding the costs of the proceeding. This decision underscores the importance of maintaining active prosecution in civil proceedings, and the consequences of prolonged inactivity.

Orders

Orders of the court

1. The defendant’s application is granted.

2. The proceeding numbered 2306/20 and commenced in the Supreme Court on 20 December 2018 is dismissed.

3. The plaintiff’s cross-applications are refused.

4. The costs of the applications before me are reserved.

5. I will hear the parties as to the costs of the proceeding.

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:	Usher v Palmer [2023] QDC 003
PARTIES:	Jonathan David Usher (plaintiff) v Ben Robert Palmer (defendant)
FILE NO/S:	2306/20
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	19 January 2023
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2022. Further written submissions received 26 and 27 September 2022.
JUDGE:	Byrne KC DCJ
ORDERS:	1. The defendant’s application is granted. 2. The proceeding numbered 2306/20 and commenced in the Supreme Court on 20 December 2018 is dismissed. 3. The plaintiff’s cross-applications are refused. 4. The costs of the applications before me are reserved. 5. I will hear the parties as to the costs of the proceeding.
CATCHWORDS:	PROCEDURE – WANT OF PROSECUTION – LACK OF PROGRESS – CROSS APPLICATION – LEAVE TO PROCEED – where the plaintiff filed a claim for defamation – where the proceedings has been delayed for two years – where the defendant filed an application that the Claim be dismissed for want of prosecution pursuant to s 22 of the Civil Proceedings Act 2011 – where the plaintiff cross-applied for orders dismissing the defendant’s application and seeking leave to continue with the proceeding pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 – whether two years have passed since the last step was taken in the proceedings – whether the filing of an application for default assessment constitutes a step in the proceedings – whether discretion should be exercised to dismiss the Claim – whether leave should be granted for the plaintiff to take a further step – whether the plaintiff had an obligation to take a step in the proceedings not required by the Rules – whether COVID-19 restrictions contributed to the delay in the proceedings – whether the delay in proceeding to trial has affected the efficacy of cross-examination – whether costs should be awarded to the parties
LEGISLATION:	Civil Proceedings Act 2011 (Qld) Supreme Court of Queensland Act 1995 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
CASES:	Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 Dempsey v Dorber [1990] 1 Qd R 418 Quinlan v Rothwell [2002] 1 Qd R 647 Robinson v Laws & Anor [2007] QSC 152 Smiley v Watson [2002] 1 Qd R 560 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
COUNSEL:	Mr. R Andersen KC for the plaintiff. Mr A. Nelson for the defendant.
SOLICITORS:	The plaintiff is appearing for himself. Australian Law Partners for the defendant.