Blundstone v Johnson & Anor [2009] QDC 351

 

The need for the application arose from the time for proceedings being missed due to a diary error by the article clerk, together with his contracting the flu and being ill for 2 weeks.

Judge Devereaux S.C helpfully addressed some common issues faced in these sorts of applications. At paragraph 14 His Honour adopted the summary by McMeekin J in Paterson v Leigh & Anor [2008] QSC 277 at [8]:

“(a) The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered;

(b) The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;

(c) Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;

(d) Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;

(e) Any delay on the part of a claimant in complying with the Act’s

requirements or in applying for an extension of time will be relevant to the exercise of the discretion;

(f) The length of any delay is important and possible prejudice to the

defendant is relevant;

(h) Depriving a defendant of the complete defence afforded by the

statutory time bar is an important matter;

(i) The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;

(j) The giving of a notice of claim before the expiry of the limitation

period and compliance by a claimant with the provisions of the Act

that it provide any information sought by the insurer are both relevant factors.” (References deleted)

 

His Honour exercised it in favour of the applicant.

Alternatively, the insurer argued ‘the Court is functus officio’ because the court had previously exercised its discretion in extending the time. However, this did not receive much traction either:

[22] Nothing in the words of s 57 prohibits the discretion it provides for being exercised twice. If the legislature intended the discretion should be exercised only once per claim, it would have been easy enough to say so, in terms such as those employed in s 51D(5). As Williams JA observed in Morrison-Gardiner at [25], ‘the statute on occasions provides that failure to comply with the court’s direction bar the starting of a proceeding in a court claiming damages.’ It does not do so in s 57.[16]

 

Finally the insurer argued that the contractual terms of the consent order operated to exclude the discretion in terms of the decision of Spencer v Nominal Defendant [2007] QCA 254.

 

His Honour however, distinguished the nature of the consent order and found it was more akin to a court order:

 

[27] The order made in the present case was quite different from that in Spencer. It reads rather more like an order of the Court, albeit with the consent of the parties, than an order embodying a compromise.[20] It required the exercise of discretion by the Court and gave the parties liberty to apply.[21] It was, at least in that sense, like the consent order Muir JA was concerned with in Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224. Paragraph 1 of that order was as follows:

 

“That the Applicant be granted leave to initiate proceedings, pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (Qld) against the Respondent for damages for personal injuries allegedly sustained on 14 August 2004, with such proceedings to be filed on or before 14 August 2007.”

 

Muir JA said at [21]:

“Counsel for the respondent argued that there was a contractual obligation on the applicant to file the “proceedings” by the stipulated date. If that is correct, which I think unlikely, the applicant breached that obligation. But the breach, if it existed, did no more than give the respondent the right to claim damages. The applicant did not agree expressly or implicitly that if he failed to file the proceedings on or before the stipulated date he would not bring another application pursuant to s 43 or under some other provision of the Act. Any such implied term would not meet the test propounded in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 347.

 

Brisbane Barrister – David Cormack

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