Evans v Dangerfield & Logan City Council [2001] QSC 117

SUPREME COURT OF QUEENSLAND CITATION: Evans v Dangerfield and Logan City Council [2001] QSC 117 PARTIES: DON EVANS (plaintiff) v JODI DANGERFIELD (first defendant) and LOGAN CITY COUNCIL (second defendant) FILE NO: S11750 of 1998 DIVISION: Trial Division DELIVERED ON: 18 April 2001 DELIVERED AT: Brisbane HEARING DATE: 21 February 2000 JUDGE: Mackenzie J ORDER: 1. A notice of discontinuance signed by the first defendant be dispensed with; 2. The costs of the application be costs in the cause. CATCHWORDS: PROCEURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – DISCONTINUANCE – an application on the papers – where first defendant cannot be located – whether in the circumstances the prescribed form that both defendants sign notice of discontinuance be dispensed with – costs in the cause. Uniform Civil Procedure Rules r 304(1) SOLICITORS: Amarandos & Company Solicitors for the plaintiff Corrs Chambers Westgarth for the second defendant [1] MACKENZIE J: This was an application on the papers in connection with proposed discontinuance by the plaintiff against both defendants. A notice of discontinuance signed by the solicitors for the plaintiff was forwarded to the solicitors for the defendants. When the matter originally came on before me on 6 December 2000, I caused inquiries to be made by telephone concerning service of the application on the first defendant who had not signed the notice of discontinuance. [2] The affidavit filed on 23 March 2001, which was conveyed to my chambers recently, indicates that the first defendant cannot be located despite appropriate searches being made. -- 1 of 2 -- 2 [3] It is the plaintiff's intention to discontinue the proceedings. As the written submissions point out, there is no assurance that the first defendant has been properly served with or has any notice of the initiating proceedings. There is no reason to suppose that she will be prejudiced in any way by the course proposed. [4] The case appears to fall within r 304(1). However the prescribed form envisages that both defendants will consent to the discontinuance. The claim will remain on the record if notice of discontinuance is not filed. Accordingly, in my view it is appropriate to dispense with the signing of the notice of discontinuance by the first defendant in all of the circumstances. [5] As to costs, the meagre information in the writ itself does not make it plain that there is any vicarious liability or other direct connection between the first defendant and the second defendant. Although my initial impression was that an order of no order as to costs might be appropriate, I have on reflection come to the conclusion that the order proposed in the application is that which should be made. I therefore order that: 1. A notice of discontinuance signed by the first defendant be dispensed with; 2. The costs of the application be costs in the cause. -- 2 of 2 --