Otis Elevator Company Pty Ltd v Drane
[2021] QCA 160
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- Unreported Judgment
- Otis Elevator Company Pty Ltd v Drane[2021] QCA 160
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Otis Elevator Company Pty Ltd v Drane[2021] QCA 160
Otis Elevator Company Pty Ltd v Drane[2021] QCA 160
SUPREME COURT OF QUEENSLAND
CITATION: | Otis Elevator Company Pty Ltd v Drane [2021] QCA 160 |
PARTIES: | OTIS ELEVATOR COMPANY PTY LTD ACN 002 873 065 (applicant) v MATTHEW NEVILLE DRANE (respondent) |
FILE NO/S: | Appeal No 12861 of 2020 DC No 1688 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane – [2020] QDC 275 (Rinaudo DCJ) |
DELIVERED ON: | 6 August 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 May 2021 |
JUDGES: | Holmes CJ and Wilson and Williams JJ |
ORDER: | The application for leave to appeal is refused. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where in 2012 the respondent commenced an action in negligence which named the applicant as second defendant – where the last step in the action was taken in December 2016 – where the respondent filed an application for leave to proceed in July 2020 – where the primary judge granted the respondent leave to proceed – where the applicant now applies for leave to appeal against that decision on the grounds that the primary judge did not consider, or properly consider, certain matters relevant to the decision of whether leave should be granted, that his Honour’s reasons were inadequate, and that he made findings which were not supported by the evidence – whether error is demonstrated in the primary judgment – whether, if error is demonstrated, this results in substantial injustice to the applicant District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), s 389(2) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, considered Tyler v Custom Credit Corporation Ltd [2000] QCA 178, applied |
COUNSEL: | A G Rae for the applicant J Kimmins for the respondent |
SOLICITORS: | King & Wood Mallesons for the applicant Shine Lawyers for the respondent |
- [1]HOLMES CJ: The applicant, Otis Elevator Company Pty Ltd, seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 against a decision of a judge of the District Court. His Honour had granted the application of the respondent, Mr Drane, for leave to proceed, pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999, in a personal injuries action which he had brought against Otis Elevator Company and three other defendants. Rule 389(2) provides:
“…
- (2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”
- [2]In the ordinary course, leave to appeal under s 118(3) will be granted only where an appeal is required to correct a substantial injustice to the applicant and an error can be made out in the judgment at first instance.[1] The proposed grounds of appeal (summarised) are that the judge at first instance: failed to provide adequate reasons, in that his Honour did not show how he had balanced relevant factors referred to in Tyler v Custom Credit Corporation Ltd;[2] did not consider, or did not properly consider, all relevant factors; erred in finding that the litigation had progressed a significant distance, that Mr Drane would be prejudiced if leave were not granted and that there was no identifiable prejudice to Otis Elevator Company if it were; and erred in failing to consider whether a fair trial was possible.
The history of the proceeding
- [3]In the action in which he sought leave to proceed, Mr Drane claimed damages for injuries said to have been sustained when a lift in which he was travelling stopped suddenly between floors because of an operating defect. Otis Elevator Company was joined as second defendant on the basis that it had been contracted by the property’s occupier (sued as first defendant) to provide maintenance and repair services for the lift. The remaining defendants were two entities which had, successively, been property managers for the premises: the third defendant up to 21 February 2012, and the fourth defendant thereafter. All defendants were said to have known of the defect in the lift and to have been negligent in: failing to identify and rectify it; failing to decommission the lift until it was made safe; failing to warn of a risk; and failing to identify and assess the risk of harm to the users of the lift. None of the defendants admitted liability.
- [4]The incident the subject of Mr Drane’s claim took place on 11 March 2012. The pre-court procedures prescribed by the Personal Injuries Proceedings Act 2002 were commenced with the delivery of a notice of claim to the first defendant in August 2012. In May 2013, Mr Drane’s current solicitors began to act for him. Notices of claim were served on Otis Elevator Company and the two property managers in February 2014. In 2013 and 2014, Mr Drane underwent medico-legal examinations by experts appointed by his own lawyers and in 2015 undertook two medico-legal examinations at the behest of the fourth defendant’s lawyers. In February 2016, his statement of loss and damage and a list of documents was provided to the defendants. All parties took part in a compulsory conference in March 2016.
- [5]The compulsory conference having been unsuccessful, the claim and statement of claim were filed and served in May 2016 and an amended claim and statement of claim in August 2016. The defendants filed notices of intention to defend and defences, the last being in September 2016, and the first defendant, the occupier, issued third party notices against Otis Elevator Company and the fourth defendant. In October 2016, Mr Drane filed replies. In December 2016, Otis Elevator Company issued notices claiming contribution from the other defendants. (The primary judge found that this was the last step taken in the action.) In June 2017, Mr Drane’s solicitors signed a list of documents, but it was not established whether it was ever served on any of the defendants. In December 2017, Mr Drane’s solicitors briefed counsel (not counsel who appeared on the appeal) to give an advice. He, remarkably, did not provide that advice until April 2020, despite correspondence and telephone calls from both Mr Drane’s solicitors and Mr Drane himself on a regular basis. At various times in 2018, 2019 and early 2020 Mr Drane also wrote to or telephoned his solicitors asking for advice as to the progress of the matter.
- [6]In August 2018, Otis Elevator Company gave notice of an application to strike out Mr Drane’s claim. His solicitors then wrote to each of the defendants’ solicitors giving one month’s notice of intention to proceed and promising a draft timetable for the progress of the claim. However, nothing more eventuated, despite reminders from Otis Elevator Company’s lawyers in October 2018 and January 2019. In July 2019, Otis Elevator Company again gave notice of an intended strike-out application. In August 2019, Mr Drane’s solicitors sent a list of documents to each of the defendants, to be met with the response that the attempt to serve the list was impermissible without the court’s order under r 389(2).
The application for leave to proceed
- [7]On 14 July 2020, the application for leave to proceed was filed. It was contended on Mr Drane’s behalf that the delay in the litigation was the fault of his legal advisers and also the result of the defendants’ failure to make disclosure, pursuant to r 214 of the Uniform Civil Procedure Rules, within 28 days of the close of pleadings. He was at a disadvantage, it was said, in obtaining expert evidence because of the failure to disclose documents relevant to the condition of the lift. The defendants, on the other hand, maintained that they had provided all relevant documents in the course of the pre-court processes under the Personal Injuries Proceedings Act, and Mr Drane had not sought any further material until the end of May 2020.
- [8]Otis Elevator Company’s solicitor filed an affidavit exhibiting a large number of documents concerning the lift, including a maintenance agreement, records of call-outs in relation to problems with the lift the year before and the year after the incident involving Mr Drane; logbook records, job cards and labour hour analysis for the work done; and a series of upgrade proposals made by Otis Elevator Company. The last included a proposal for improvement of the lift made about a fortnight after the incident in question; it noted the lift’s “inaccurate floor levels” and “harsh stopping characteristics”. All of the documents had been disclosed in the pre-court process.
- [9]Mr Drane contended that he would suffer great prejudice if the r 389 order were not made, because he would lose his right of action, while, on the other hand, there was no prejudice to the defendants, who were aware of the claim soon after it arose, and were, it was apparent from their pleadings, in possession of details of the complaints and investigations concerning the lift. The defendants countered that Mr Drane’s delay was unexplained and would lead to prejudice to them. Otis Elevator Company no longer employed a witness it would need to give evidence at trial; its solicitor deposed that she was not aware of his current location, contact details or availability to give evidence. The solicitor also deposed that she was instructed that two components of the lift had been replaced in 2015 and another significant component replaced in 2018. She went on to say that there was no utility now in inspecting the lift, since it had changed substantially. She did not explain her capacity to give that opinion or identify any source of information for it.
The judgment
- [10]The primary judge reproduced a chronology of events, provided by one of the parties, in his judgment and then set out r 389(2) and some statements from authority. He noted the non-exhaustive list of factors which Tyler v Custom Credit Corporation Ltd indicated was relevant, recording the submissions for Mr Drane in relation to each of those factors:
- (1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- (2)how long ago the litigation was commenced or causes of action were added;
- (3)what prospects the plaintiff has of success in the action;
- (4)whether or not there has been disobedience of Court orders or directions;
- (5)whether or not the litigation has been characterised by periods of delay;
- (6)whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- (9)how far the litigation has progressed;
- (10)whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- (11)whether there is a satisfactory explanation for the delay; and
- (12)whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.[3]
His Honour then dealt, firstly, with the joint submissions of Otis Elevator Company and the first and third defendants and then with the separate submissions of the fourth defendant.
- [11]In reviewing the joint defence submissions, his Honour noted points made about delay and the loss of evidence, including physical evidence in the form of the lift itself, as diminishing the prospect of a fair trial. It was also submitted (his Honour recorded) that nothing in Mr Drane’s material gave any assurance that the future conduct of the proceedings would be any more expeditious. The fourth defendant contended that the delay in the action was not adequately explained and rejected any proposition that it was responsible for any delay. It asserted that Mr Drane had not been diligent in pursuing his solicitors in relation to the conduct of the claim.
- [12]The primary judge went on to make some observations and draw some conclusions. The first conclusion was that the filing of the notices of contribution in December 2016 was the last step taken in the action. The next was that Mr Drane’s prospects of success were reasonable. His Honour found that the delay was solely attributable to the conduct of Mr Drane’s lawyers; neither he nor the defendants had played any part in it. There had been no disobedience of court orders or directions. Mr Drane would be highly prejudiced if his claim were struck out, since it would be statute-barred. His Honour noted, with reference to authority,[4] that a reasonable excuse for delay was not a condition precedent to leave to proceed; the greater focus was on the existence of material prejudice to the other party if the action were permitted to proceed. He then reached the following conclusions, which are contentious here:
“Here, the litigation has progressed a significant distance; pleadings are closed. There is no identifiable prejudice to the defendants, other than the prejudice inherent in any delay of significant time.”[5]
In connection with his reference to inherent prejudice, his Honour cited Brisbane South Regional Health Authority v Taylor.[6] He then concluded that the application for leave to proceed should be granted.
- [13]The judgment was delivered on 2 November 2020. Although it is not apparent from the judgment itself, it appears that Mr Drane was ordered to pay the other parties’ costs of the application. Evidently as a result of discussion between the primary judge and counsel at that time, consent orders were made soon after: for service by all parties of lists of documents, medical examinations of Mr Drane, delivery of expert reports, service of amended pleadings and participation in a mediation.
The proposed grounds of appeal
- [14]As already noted, Otis Elevator Company identified four proposed grounds of appeal. The first two were related, turning on what were said to be inadequacies in the primary judge’s reasoning and failure to consider, or properly to consider, certain matters. As to considerations not dealt with, it was said that there were some Tyler factors which his Honour did not mention in the judgment: the length of time since the relevant events had occurred; how long it was since the litigation was commenced; whether there was delay before that occurred and once it occurred; and the satisfactoriness of the reasons given for the delay in the proceeding.
- [15]Secondly, it was said that there were factors to which proper consideration did not appear to have been given. In relation to the progress in the litigation, his Honour had said nothing about disagreement between the parties as to whether disclosure was complete, the fact that expert evidence had not been obtained and the failure of Mr Drane’s solicitors to deliver a promised timetable to move ahead with the matter. In stating that there was no identifiable prejudice to the defendants, his Honour had made no reference to evidence that components in the lift had been changed, so that it was no longer in the same condition for the purpose of obtaining expert evidence, and it appeared that he had overlooked that matter.
- [16]As to the primary judge’s alleged inadequacy of reasons, there was no indication in his Honour’s reasons as to how he had balanced the relevant factors; he had not identified what prejudice he had taken into account; he appeared, wrongly, to have had regard to the fact that Mr Drane’s claim would be statute-barred with obvious prejudice to him if it were struck out (although this appears to be an irrelevant consideration argument, rather than relating to the sufficiency of reasons); and he made no mention of the fact that no reason was given for the delay in taking steps in the action.
- [17]Next, it was said that the primary judge had made three findings which were not supported by the evidence. The first was that the litigation had progressed a significant distance, when, in fact, all that had happened was that pleadings were complete, but no expert evidence had been obtained and there was disagreement as to the adequacy of disclosure. There was also reason to think that the file of Mr Drane’s solicitors was incomplete (the solicitor’s affidavit having been sworn on information and belief from Mr Drane rather than by reference to the file). The primary judge had not referred to submissions and evidence in that regard, nor to evidence as to Mr Drane’s failure to provide a timetable. The correct conclusion was that the litigation had not progressed significantly.
- [18]The second erroneous finding which his Honour was said to have made was that Mr Drane would be highly prejudiced if his claim were struck out as statute-barred, because, Otis Elevator Company contended, any prejudice was negated by his having, in that event, an action in negligence against his solicitors. Finally, the finding that there was no identifiable prejudice to the defendants was wrong, because there was evidence that Otis Elevator Company would now have difficulty obtaining expert evidence in relation to the condition of the lift.
- [19]The last appeal ground was that the primary judge had erred in failing to consider whether it was possible in the circumstances for a fair trial to take place. The changes to the lift, the effect of witnesses’ failing memory and the dispute as to the adequacy of disclosure all pointed, it was submitted, to injustice. It was also said that the primary judge should have taken into account the responsibility of Mr Drane’s lawyers for the long delay and the fact that granting Mr Drane leave meant that they would face no consequence for it. It was unfair to Otis Elevator Company that it bear the cost of the lawyers’ inaction. The primary judge should have considered whether it was possible to conduct a fair trial and concluded in the negative.
Is error demonstrated in the judgment?
- [20]The judgment of Meagher JA in Beale v Government Insurance Office of NSW[7] sets out three essential elements of reasons for a judicial decision. Paraphrased, they are as follows. The judge should refer to relevant evidence; that need not be in detail, particularly where it is clear that it has been considered. Material findings and conclusions of facts should be set out, including, where evidence conflicts, why one is accepted rather than another, although explicit findings on each disputed piece of evidence may be unnecessary if the inference as to what is found is clear. Finally, the judge should provide reasons for making the relevant findings, drawing the relevant conclusions and applying the law to the facts found.
- [21]In this case, it was unnecessary for the primary judge to mention all of the Tyler factors which Otis Elevator Company says should have been raised. It was uncontroversial that his Honour was considering substantial delay, both since the incident giving rise to the claim and in the period since litigation had commenced. The facts as to the lapse of time were set out in the judgment, in the form of the chronology which his Honour adopted, and were also dealt with when he set out Mr Drane’s submissions. His Honour did find an explanation for that delay, attributing it entirely to Mr Drane’s lawyers “as described above”; by which he meant, one infers, the failure to take any steps to advance the litigation after the close of pleadings, which he had previously outlined in dealing with the submissions. It was implicit in his Honour’s reference to the statement in Quinlan v Rothwell (that “reasonable excuse for the delay” was not a condition precedent to leave to proceed) that he had in fact found that there was not any reasonable excuse for the delay.
- [22]In reaching the view that the closure of pleadings amounted to significant progress, it was not incumbent on the primary judge to review the factors to which Otis Elevator Company pointed: the lack of expert evidence, disagreement about disclosure, Mr Drane’s solicitors’ non-provision of a timetable and the possibly unsatisfactory state of their file. These were (with the exception of the last) respects in which the litigating of the case fell short of what might have been desired, but his Honour was considering how far the proceedings had advanced, not whether that progress was satisfactory. As to the finding itself, views might differ; but it is difficult to find error in an assessment that having reached the close of pleadings in this particular case, involving not only the usual inter partes pleadings but third party and contribution notices, amounted to progress of significance.
- [23]For the proposition that prejudice to Mr Drane was irrelevant, Otis Elevator Company relied on the judgment of Chesterman J in Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd.[8] It is to be noted though, that Lilyville involved a significantly different set of circumstances. The plaintiff, having commenced its action by writ of summons just within the six-year limitation period, three years later sought leave under r 389 to proceed by delivering a statement of claim. The defendant in that case had brought an action on related matters against the principal of the plaintiff company, and he had by way of defence and on affidavit raised various cross-claims. The parties had agreed that the action should be consolidated on the basis that the plaintiff company would advance those claims in its statement of claim. However, in the event, the plaintiff sought leave under r 389 to proceed by delivery of a statement of claim which contained claims well beyond anything of which the defendants had previously had notice, ten years after the events in question. There was also a question as to whether some of those claims were out of time when the writ was served.
- [24]It was in those circumstances that his Honour equated the application for leave to proceed to an application to extend a limitation period, observing that in both instances the occasion for the exercise of the discretion was prejudice to the plaintiff if not allowed to proceed, rather than a factor to be taken into account in its exercise. In that context, Chesterman J referred to the judgment of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor. In the relevant passage,[9] Toohey and Gummow JJ noted that prejudice to a plaintiff who is not permitted to begin proceedings after the expiration of a limitation period could not of itself warrant an extension of time (because then there would be no discretion to be exercised). The fact that the plaintiff in Taylor could show she had a right of action, apart from the bar posed by the limitation period, simply meant that one of the preconditions for the application was met.
- [25]The loss of an action is not literally a precondition for the making of an application under r 389; the plaintiff simply loses the right to take a further step in the existing proceeding, which may or may not preclude any further action. And a defendant resisting an application for leave to proceed is usually in a rather different position from a prospective defendant resisting an extension of a limitation period. The latter may have conducted his affairs in the confidence that sufficient time has elapsed to remove any prospect of litigation, or may, indeed, have been oblivious to any such prospect. The introduction of entirely new claims in Lilyville, a decade after they arose, raised concerns in that case raised more akin to the limitation period cases than those in more typical r 389 applications.
- [26]Notably, in Lilyville, Chesterman J did give the plaintiff leave to proceed by delivery of a statement of claim containing those claims of which the defendant was already aware, observing that it would be
“…unfair to deprive the plaintiff of the ability to prosecute those claims which the defendant understood would be brought and was prepared to meet”.[10]
The case does not, then, support Otis Elevator Company’s proposition that the prejudice to Mr Drane should he lose the ability to bring his action was irrelevant. To the contrary, Chesterman J did take into account prejudice to the plaintiff if it were deprived of the opportunity to pursue the claims it had already made known.
- [27]What is more problematic is that, having referred to that prejudice, the primary judge did not deal with Otis Elevator Company’s submission that any prejudice to Mr Drane was negated by the fact that he would have a good action against his solicitors. Nor, having referred to Otis Elevator Company’s experiencing the general form of prejudice associated with delay of the kind described by McHugh J in Brisbane South Regional Health Authority v Taylor,[11] did his Honour go on to consider the submissions which he had recorded about specific prejudice to Otis Elevator Company or deal with the ultimate question of whether a fair trial could be achieved despite the delay.
- [28]It was open to his Honour to consider Otis Elevator Company’s submissions unconvincing, or if they were convincing, that they were, nonetheless, not conclusive, but his Honour did not advert to the evidence or the submissions about those matters in reaching his conclusions. Nor did his Honour address the allied question of whether Otis Elevator Company could obtain a fair trial. His failure to do so was an error; the question is whether any substantial injustice resulted from it.
Did a substantial injustice result?
- [29]My conclusion is that it did not, because I do not consider any different result likely to have been reached had those matters been properly considered. One can start from the premise that there was inexcusable delay on the part of Mr Drane’s lawyers between late 2016 and July 2020 in the context of a case which had already dragged on through pre-court proceedings for four years. However, the action had proceeded some way, all parties were well aware of the issues, and although lists of documents have not formally been exchanged under the Rules, it seems very improbable that any relevant documents remain outstanding. (No party identified anything that might be missing and one could be forgiven for thinking that Mr Drane’s lawyers on the one hand raised the lack of further discovery in an effort to avert blame, while Otis Elevator Company raised the lack of agreement on the subject, not because it thought there was any substance to it, but to bolster its argument as to lack of progress.) The lack of a timetable could be, and was, remedied by appropriate orders by the primary judge. Whether Mr Drane’s solicitors’ file was incomplete was purely a matter of speculation, and in any event seems inconsequential to me.
- [30]There was no issue that Mr Drane has reasonable prospects of success in his action against the defendants. I do not think that the prospect of a cause of action against his solicitors would be such a satisfactory substitute for that action that he would lose nothing by its being ended. He would have to start afresh with new lawyers, and it is hard to imagine that he would have continued to endure the unsatisfactory level of representation by his present lawyers if he had the means easily to find alternatives. Even if that were not so, there is certainly an element of prejudice to him should he lose a relatively straightforward action for the prospect of one in which he has to prove both negligence on the part of his solicitors and what judgment he might have obtained but for that negligence.
- [31]But more important is the effect of delay on the Otis Elevator Company and whether it can be accorded a fair trial. While the general prejudice arising from delay referred to in Brisbane South Regional Health Authority v Taylor must inevitably have arisen to some extent, I would not consider it likely to be of such proportions as to create any significant disadvantage to Otis Elevator Company. All the defendants have been well aware since 2012 of the prospect and details of Mr Drane’s claim. The records are available of Otis Elevator Company’s examinations of the lift in the years before and after the incident involving Mr Drane.
- [32]As to the more particular matters raised, the missing employee was in fact not seriously pressed as a concern; perhaps not surprisingly, since it did not appear that anybody had yet looked for him. As far as the lift’s changed condition is concerned, it was not explained why the replacement of components would render an expert examination of it futile; nor was any basis suggested which would enable the solicitor to express that opinion. Otis Elevator Company was, its counsel said, responsible for both design and maintenance of the lift in question; it might be expected itself to have a certain level of expertise in relation to it and certainly to be in a position to provide evidence as to how any change might be relevant to an examination of it. In the absence of any such evidence, I would not give the element of prejudice to the defendant any great weight.
- [33]On the evidence which is available, I do not think that that there is any real risk of the trial being unfair to Otis Elevator Company. There may well be some element of unfairness in Otis Elevator Company’s not recovering the entirety of its costs on this application, and no doubt it has a justified sense of grievance at the lack of consequence for Mr Drane’s solicitors’ inertia; but that is not the same as delay rendering it impossible to hold a trial fairly.
- [34]For completeness, I will mention an argument Mr Drane’s counsel made, that there was no advantage to Otis Elevator Company were it to succeed in this application and on appeal in this court (and, correspondingly, no disadvantage to it from the primary judge’s order), because the remaining defendants had not appealed and it was still obliged to defend the third party proceeding and maintain its contribution claims. But there is a flaw in that logic; his Honour made a single order enabling Mr Drane to proceed. If it were set aside by this court, no defendant would face any proceeding.
- [35]Putting that argument to one side, I consider that on balance the discretion would properly have been exercised in favour of allowing Mr Drane to proceed, so that the primary judge’s order occasioned no substantial injustice to Otis Elevator Company. For that reason, I would refuse leave to appeal.
- [36]WILSON J: I agree with the reasons of Holmes CJ and with the order her Honour proposes.
- [37]WILLIAMS J: I agree with the reasons for judgment of the Chief Justice and the order proposed by her Honour.
Footnotes
[1]Pickering v McArthur [2005] QCA 294 at [3].
[2][2000] QCA 178.
[3][2000] QCA 178 at [2].
[4]Wilson v Bynon [1984] 2 Qd R 83; Quinlan v Rothwell [2002] 1 Qd R 647 and The President’s Club Ltd v Palmer Coolum Resort Pty Ltd [2019] QSC 209.
[5]Drane v Barolin Tower Pty Ltd & Ors [2020] QDC 275 at [32].
[6](1996) 186 CLR 541 per McHugh J at 551 – 552.
[7](1997) 48 NSWLR 430 at 443-444.
[8][1999] QSC 372 at [20].
[9](1996) 186 CLR 541 at 549.
[10]At [21].
[11]At 551 – 552.