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- Benz v Clough[2008] QCA 125
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Benz v Clough[2008] QCA 125
Benz v Clough[2008] QCA 125
SUPREME COURT OF QUEENSLAND
PARTIES: | ELIZABETH MINA BENZ (second applicant/second appellant) |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 30 May 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 May 2008 |
JUDGES: | de Jersey CJ, Keane JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – where the appellants filed a claim and statement of claim in the Supreme Court on 16 October 2002 for damages allegedly suffered as a result of professional negligence of the respondent – where the claim was not served on the respondent – where the claim was renewed annually from 2003 to 2006 – where the appellants applied for leave to renew the claim pursuant to r 24(4) of the Uniform Civil Procedure Rules 1999 (Qld) – whether there is good reason to grant leave to renew the claim Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24(4) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, [1996] HCA 25, applied The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [2006] QCA 407, applied |
COUNSEL: | The second appellant appeared on his own behalf and on behalf of the first appellant The respondent appeared on his own behalf |
SOLICITORS: | The second appellant appeared on his own behalf and on behalf of the first appellant The respondent appeared on his own behalf |
[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the appeal should be dismissed for those reasons.
[2] KEANE JA: On 16 October 2002 the plaintiffs filed a claim and statement of claim in the Supreme Court seeking damages from the respondent for loss allegedly suffered by them in 1996 as a result of the professional negligence of the defendant. The claim was not served on the respondent, and the plaintiffs renewed the claim on an annual basis from 2003 to 2006. On 12 December 2007 the plaintiffs applied ex parte for leave to renew the claim pursuant to r 24(4) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). That application was refused by the learned primary judge.
[3] The learned primary judge summarised the circumstances of the earlier renewals as follows:
"The material indicates that in 2003 renewal was obtained on the basis of an affidavit filed by the plaintiffs deposing to them being handicapped persons who had health complications and who were seeking pro bono assistance in relation to their claims and were applying to QPILCH for assistance. On that occasion the claim was renewed by the registrar.
In 2004 the claim was again renewed, apparently on the basis of an affidavit filed in the matter and sworn to by Mr Keller. That affidavit indicated that Mr Keller's firm was assisting the plaintiffs at that stage; that is, in late 2004 on a pro bono basis.
The writ was renewed again in 2005. On that occasion an affidavit was filed by the plaintiffs again deposing to their health difficulties and financial difficulties. It was indicated in that affidavit:
'We can now say that we have been able to obtain the services of solicitor and counsel pro bono who now require discovery to all relevant documents and a chronology of events. We are using our best efforts to pursue these matters.'
On 16 October 2006 the writ was again renewed. On that occasion an affidavit was filed again deposing to the health difficulties suffered by the plaintiffs and the supporting documentation was annexed to the affidavit concerning those health difficulties. An application was filed in the registry on 22 October 2007 seeking further renewal of the claim. On that occasion an affidavit was filed by the plaintiffs deposing essentially to the same health issues that had been the subject of previous affidavits and before the Court the male applicant indicated that there had been discussions with the solicitor in relation to that solicitor assisting on a pro bono basis."
[4] In the course of the hearing before the learned primary judge, it was suggested by the plaintiff, Mr Howard, who spoke for himself and Ms Benz, that the Counsel who the plaintiffs believed had agreed to act for them was Mr A J H Morris QC. As it happened, Mr Morris QC was in the back of the courtroom when his involvement in the matter was mentioned, and her Honour asked Mr Morris QC if he could offer any assistance in relation to the position. Mr Morris denied that he had been approached to act for the plaintiffs in the matter.
[5] The learned primary judge went on to conclude:
"It seems to me, in the circumstances, that no good reason has been shown for the failure to serve the proceedings over a 5 year period.
There are clearly concerns when proceedings are issued in relation to events which are alleged to have occurred many, many years before the proceedings are served on a defendant. That would appear to be the case that will eventuate if renewal is granted. I do not consider that any other good reason has been shown for the renewal of the proceedings, and as I indicated, I cannot accept that any good reason has been shown for the failure to serve the claim of the period since it was last renewed.
Essentially the reason put forward by the applicants is that they were seeking legal representation and they have been of ill health, but I cannot accept that as an appropriate explanation in the circumstances, and particularly given the long history of renewal of the claim."