DISTRICT COURT OF QUEENSLAND
CITATION:
Uzsoki v McArthur [2011] QDC 60
PARTIES:
CATHY UZSOKI
(Plaintiff)
v
JOHN McARTHUR
(Defendant)
FILE NO/S:
BD 1699/01
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
28 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2011
JUDGE:
Andrews SC DCJ
ORDER:
The proceeding is dismissed.
CATCHWORDS:
Practice – want of prosecution – where plaintiff took no step in proceeding for 18 months – where defendant failed to apply to set aside step – whether defendant waived irregularity – whether appropriate to dismiss proceeding
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 371 (2) (e), r 389 (1), r 443 (c)
Supreme Court of Queensland Act 1991 (Qld), s 85
District Court of Queensland Act 1967 (Qld), s 69(1)
Basha v Basha [2010] QCA 123, applied
Concord Park P/L v Allied Organik Ltd & Anor [2003] QDC 420, cited
Fairview Farming Co P/L v Cairns City Council [2008] QSC 122, cited
Kanyilmaz v Nominal Defendant(Qld) [2000] QSC 180; BC 200004661, distinguished
Multi-Service Group P/L v Osborne [2009] QSC 286, cited
Page v The Central Queensland University [2006] QCA 478, cited
Perez v Transfield(Qld) Pty Ltd (1979) Qd R 444, distinguished
Pickering v McArthur (No 2) [2010] QDC 90, cited
Pickering & Anor v McArthur [2010] QCA 341, applied
Porzuczek v Toowoomba District Heal Services [2007] QDC 177, cited
COUNSEL:
A Collins for the Applicant/Defendant
H Byrne for the Respondent/Plaintiff
SOLICITORS:
Hatzis lawyers for the Plaintiff
HWL Ebsworth Lawyers for the Defendant
The defendant applies for an order that the plaintiff’s claim be struck out for want of prosecution. The defendant submits this court has the power to strike out the proceeding pursuant to UCPR r5(4) and r280(1)(b), and s85 Supreme Court of Queensland Act 1991 (Qld), as the plaintiff’s breached the implied undertaking within UCPR r(5)(3) and failed to take steps required by the rules.
Those rules provide so far as is relevant:
5 Philosophy—overriding obligations of parties and court
(1) The purpose of these rules is to facilitate the just and
expeditious resolution of the real issues in civil proceedings at
a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with
the objective of avoiding undue delay, expense and
technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the
court and to the other parties to proceed in an expeditious
way.
(4) The court may impose appropriate sanctions if a party does
not comply with these rules or an order of the court.
Example—
The court may dismiss a proceeding or impose a sanction as to costs, if,
in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.280 Default by plaintiff…
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- AGLC
- Uzsoki v McArthur [2011] QDC 60
- Case
- [2011] QDC 60
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the defendant had waived the plaintiff's failure to prosecute and whether, in the absence of such a waiver, the court should exercise its discretion to dismiss the proceeding. The court had to consider the principle that a party who does not take steps to enforce a right may be deemed to have waived it, as well as the factors that should influence the exercise of discretion in cases of non-prosecution. The court also had to assess whether the delay caused any prejudice to the defendant and whether the delay was unreasonable.
The court held that the defendant had not waived the plaintiff's failure to prosecute, as there was no evidence to suggest that the defendant had acquiesced to the delay. The court emphasised that the defendant's failure to take action did not amount to a waiver, as it was the defendant's right to pursue the matter or to seek a dismissal. The court further found that the delay was unreasonable and caused prejudice to the defendant, leading to the conclusion that dismissal was an appropriate remedy. Given these findings, the court exercised its discretion to dismiss the proceeding, noting the importance of ensuring that the courts are not used as repositories for stale claims.
The court's final order was that the proceeding be dismissed, reflecting the court's view that the delay was unreasonable and prejudicial, and that the defendant had not waived the plaintiff's failure to prosecute. This decision underscores the importance of diligent prosecution of claims and the court's willingness to dismiss proceedings where there is significant delay and prejudice.
Orders
Orders of the court
The proceeding is dismissed.
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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