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Kuperman v Permanent Trustee Australia Limited[2023] QCA 54

Kuperman v Permanent Trustee Australia Limited[2023] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

Kuperman v Permanent Trustee Australia Limited [2023] QCA 54

PARTIES:

GAYE ALEXANDRA KUPERMAN

(appellant)

v

PERMANENT TRUSTEE AUSTRALIA LIMITED

ACN 008 412 913

(respondent)

FILE NO/S:

Appeal No 13003 of 2022

DC No 595 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 26 September 2022 (Burnett DCJ)

DELIVERED ON:

28 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2023

JUDGES:

Mullins P and Dalton JA and Bradley J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – GENERALLY – where the appellant filed a plaint against the respondent for personal injury in 1998 – where the last step in the proceeding was taken in 2002 – where the appellant filed an application for leave to proceed after a delay of over 19 years – where the respondent filed a cross-application to dismiss the proceeding for want of prosecution – where the appellant justified the delay by reference to her circumstances of disability, impecuniosity and homelessness – where the appellant had litigated at least 44 separate matters since the last step was taken – where medical practitioners who had provided the initial reports as to the appellant’s injuries could no longer be located – where the respondent’s former solicitors could no longer locate the original file – where the primary judge found that the proceeding was characterised by delay – where the primary judge found that the appellant had not provided a satisfactory explanation for the delay – where the primary judge found that the respondent would suffer prejudice – where the primary judge dismissed the application for leave to proceed and dismissed the proceeding for want of prosecution – where the appellant contends that the primary judge’s discretion miscarried – whether the primary judge’s decision should be set aside – whether the appellant should be granted leave to proceed

Civil Proceedings Act 2011 (Qld), s 22(2)

District Court Rules 1968 (Qld), r 149A, r 182

Uniform Civil Procedure Rules 1999 (Qld), r 5(3), r 214, r 280, r 389, r 547, r 548, r 550

Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, applied

Cooper v Hopgood & Ganim [1999] 2 Qd R 113; [1998] QCA 114, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

Keioskie v Workers’ Compensation Board of Queensland [1992] QCA 304, cited

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, cited

William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; [1963] HCA 6, cited

COUNSEL:

The appellant appeared on her own behalf

A I O'Brien for the respondent

SOLICITORS:

The appellant appeared on her own behalf

Mills Oakley for the respondent

  1. [1]
    THE COURT:  On 26 September 2022, the learned primary judge dismissed an application brought by the appellant Ms Luck for leave to proceed after a delay of more than 19 years, and dismissed the whole of the delayed proceeding, which Ms Luck had commenced in the District Court more than 24 years before.  In this appeal, Ms Luck seeks to set aside his Honour’s decision, obtain leave to proceed, and have other orders made to facilitate the proceeding continuing, in an amended form, in the Supreme Court.

Summary of events before the application for leave to proceed

  1. [2]
    On 13 February 1998, Ms Luck’s solicitors commenced the proceeding on her behalf, claiming $250,000 as damages for personal injury, together with interest and costs.  Ms Luck was then known as Ms Kuperman. In the proceeding, it was alleged Ms Luck had suffered an injury by slipping on wet tiles on a walkway from the carpark at the Toowong Village Shopping Centre on 14 February 1995.
  2. [3]
    On 17 March 1998, the respondent defended, admitting it was a company and the occupier and owner of the Toowong Village Shopping Centre and carpark.  It denied the alleged injuries were caused by its negligence or breach of duty.  It did not admit any of the other matters alleged.  The respondent also pleaded that, if Ms Luck sustained the alleged injuries (which it did not admit), the injuries were not as alleged by her and were caused or contributed to by her negligence.  The defence was served on 18 March 1998.  With it, the pleadings closed.  No reply or amended pleading was filed.
  3. [4]
    On 1 June 1999, the respondent filed its affidavit of documents, sworn by Mr Mergher, a manager.  It was the first step in the proceeding in more than one year.  For the purposes of Ms Luck’s application for leave to proceed, a step is an act taken to progress the proceeding towards a conclusion.[1]  So, for example, on 20 January 1999, when Ms Luck’s new solicitors gave notice they were acting for her, it was not a relevant step.
  4. [5]
    On 12 November 1999, the District Court ordered Ms Luck to deliver a list of documents and a statement of loss and damage within 14 days.  This order was preceded by a letter from the respondent’s solicitors dated 1 June 1999 requesting the outstanding statement of loss and damage, and letters dated 26 July, 16 September, and 7 October 1999 requesting both the statement and an affidavit of documents.  The last of these letters was written pursuant to r 444 of the then recently commenced Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  When the requests failed to procure Ms Luck’s compliance, the respondent applied for the order.  An affidavit of Mr Crethary, a solicitor, exhibited the letters.
  5. [6]
    Ms Luck had been in breach of the relevant rules for some time.  She had not filed and served a written statement of loss and damage within 28 days after the close of pleadings, as r 149A(3) of the (now repealed) District Court Rules 1968 (Qld) (DCR) required.  From 1 July 1999, r 547(1) of the UCPR imposed the same obligation.  She had not filed an affidavit or furnished a list of documents within 14 days of being served with a notice requiring her to do so, as r 182(2) of the DCR required.  The respondent served the notice on Ms Luck’s solicitors under a letter dated 1 June 1999.  Her affidavit or list of documents was due at latest by the end of June 1999.  From 1 July 1999, r 214 of the UCPR required a party to deliver a list of documents within 28 days after the close of pleadings.
  6. [7]
    As well, from 1 July 1999, by r 5(3) of the UCPR, a party to a proceeding impliedly undertook to the court and to the other parties to proceed in an expeditious way.
  7. [8]
    On 17 November 1999, Ms Luck’s solicitors served an “incomplete” statement of loss and damage.  The required information about Ms Luck’s employment and income before and since the injury were “[t]o be advised”.  No details were provided of any self-employment.  The particulars of the amount of damages sought were “TBA”.  Her tax paid and taxable income documents (before and since the injury) were to be “provided in due course.”  In these ways, the incomplete statement did not comply with r 547 of the UCPR.
  8. [9]
    On 18 November 1999, Ms Luck’s solicitors filed a list of documents, complying with that part of the District Court order.
  9. [10]
    After 18 November 1999, Ms Luck took no step to progress the proceeding towards a conclusion during the following two years and 11 months.  In that period other things occurred, including the following, none of which was such a step.
  10. [11]
    On 2 December 1999, the respondent filed an application for an order dismissing Ms Luck’s claim for want of prosecution.  It was supported by another affidavit of Mr Crethary, filed on 3 December 1999.  He deposed to the incomplete statement of loss and damage, and that Ms Luck had failed to serve a list of documents within the 14 days, as ordered.  On 10 December 1999, the District Court made an order by consent requiring Ms Luck to pay the respondent’s costs of that application and dismissing the application.
  11. [12]
    On 2 September 2002, Ms Luck’s solicitors applied for leave to withdraw.  The supporting affidavit by her solicitor Mr McGowan deposed that he had “found it very difficult to get instructions” from Ms Luck since December 1999.  He had sent four letters (dated 30 December 1999, 14 March 2001, 1 November 2001, and 5 July 2002) and had “numerous telephone conversations” requesting instructions, and documents and information required by the rules.  In these letters, Ms Luck’s solicitors informed her that the outstanding steps needed to be taken to avoid the proceeding being dismissed for want of prosecution.  Mr McGowan exhibited a letter from Ms Luck dated 23 March 2001.  In it, Ms Luck wrote:

“I have been prescribed, some months ago, a period of rest, treatment & recuperation for 3 months.  …  I will be taking that time as of today and will not be participating in any way with any correspondence, receiving or despatching or matters related to the above references for at least that period of time, to remain stress free.”

  1. [13]
    According to Mr McGowan, Ms Luck had provided no instructions in the 17 months following this communication.
  2. [14]
    On 13 September 2002, the District Court gave Ms Luck’s solicitors leave to withdraw.
  3. [15]
    On 16 September 2002, Ms Luck filed a notice that she was acting in person in the proceeding.
  4. [16]
    On 1 November 2002, Ms Luck took the next step in the proceeding.  She sent the respondent by email a “properly particularised” statement of loss and damage.[2]  The statement was dated 31 October 2002.  Her covering letter indicates the statement was sent in advance of a settlement conference to be held on 4 November 2002.  The settlement conference did not resolve the claim, but it was another step in the proceeding.
  5. [17]
    On 7 November 2002, Ms Luck sent the respondent an amended statement of loss and damage. In it, she claimed total damages of more than $3.9 billion.  This exceeded the monetary jurisdiction of the District Court.  More than $3.4 billion of the total was for aggravated and exemplary damages.  Damages of that kind were not claimed in her plaint.  No facts were pleaded to give rise to a claim for such damages.
  6. [18]
    Service of this amended statement of loss and damage was another relevant step in the proceeding.  It was the last such step taken.[3]

Summary of events from the application for leave to proceed

  1. [19]
    On 27 June 2022, Ms Luck filed an application for leave to take a further step in the proceeding.  No step had been taken in the proceeding for 19 years and seven months.  On 28 June 2022, Ms Luck filed two affidavits.  She had sworn one on 24 May 2022, and the other on 14 June 2022.  On 11 July 2022, she filed an affidavit of service, sworn by Mr Crowley, a commercial agent, on 29 June 2022.
  2. [20]
    On 12 July 2022, the District Court made directions.  The respondent was to file and serve any application to dismiss the proceeding and any affidavits upon which the respondent intended to rely in relation to the dismissal application and Ms Luck’s application for leave to proceed, by 5 August 2022.  Ms Luck was to file and serve any affidavits in reply by 19 August 2022.  The parties were to file and serve their written submissions on both applications by 2 September 2022.  They were to file and serve any written submissions in reply by 9 September 2022.
  3. [21]
    On 28 July 2022, Ms Luck filed another affidavit, which she had sworn on 30 June 2022.
  4. [22]
    On 5 August 2022, the respondent filed its application for an order dismissing the proceeding for want of prosecution, and an affidavit of Mr Byrne, a solicitor.  On 2 September 2022, the respondent filed written submissions.  On 7 September 2022, Ms Luck filed written submissions.  On 15 September 2022, the respondent filed another affidavit of Mr Byrne.  On 19 September 2022, Ms Luck filed written submissions in reply.  On 23 September 2022, Ms Luck filed another affidavit, which she had sworn on 19 September 2022.

The hearing before the primary judge

  1. [23]
    On 23 September 2022, the primary judge heard the applications.  Ms Luck read all documents filed in the proceeding, including her affidavit filed that morning.  She relied on her written submissions, and she made oral submissions between about 10.03 am, when the hearing commenced, and 1.00 pm, when it concluded.[4]  The respondent relied on its written submissions and the affidavits filed for the hearing.  The primary judge did not call on the respondent’s counsel for any oral submissions.  His Honour advised the parties he would deliver judgment at 1.00 pm on the following Monday, which was the next sitting day.
  2. [24]
    On 26 September 2022, the primary judge made the order the subject of this appeal, dismissing Ms Luck’s application for leave to proceed, dismissing the whole of the proceeding pursuant to s 22(2) of the Civil Proceedings Act 2011 (Qld),[5] and requiring Ms Luck to pay the respondent’s costs of the application.  That day, his Honour delivered reasons in court, which were transcribed.

The primary judge’s reasons

  1. [25]
    In the reasons, the primary judge identified the relevant principles.  The grant of leave or the dismissal for want of prosecution involves an exercise of the court’s discretion.  As McPherson JA observed in Cooper v Hopgood & Ganim:

“The power so to dismiss is one that is confined to a judicial discretion, and, for that if no other reason, is incapable of being exhaustively defined or delimited in a detailed and binding fashion.”[6]

  1. [26]
    The primary judge noted that Ms Luck had the onus of demonstrating that there is good reason to allow the proceeding to continue after such a long period when no step has been taken, citing Tyler v Custom Credit Corp Ltd & Ors.[7]  His Honour drew on that decision for 11 factors for the court to consider.
  2. [27]
    As the High Court observed of its then rules requiring leave to proceed after six years:

“What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes.”[8]

  1. [28]
    The primary judge considered the evidence and submissions on each of the identified factors.  However, three are of particular importance.

The proceeding was characterised by delay

  1. [29]
    The first important factor was that the proceeding had been characterised by delay.  The entire court file was before the primary judge.  His Honour concluded:

“Since commencement, the matters reveal only three periods of activity.  The first is from commencement of the proceedings in February 1998 to December 1999 when efforts were made to have [Ms Luck] deliver the efficacious statement of loss and damage.  I note a statement of loss and damage has been delivered since.  A second period of activity occurred for about a month in 2002 when her former solicitors sought leave to withdraw.  Then finally over the last couple of months there is evidence of some period of activity during which this application has been prosecuted.  Apart from those periods, nothing else has occurred to progress the matter.”

No satisfactory explanation for delay

  1. [30]
    The second important factor was whether there was a satisfactory explanation for the delay. The primary judge rejected Ms Luck’s submissions and sworn assertions that she was unable to take further steps in the proceeding due to her disability and homelessness or her impecuniosity.
  2. [31]
    The primary judge noted the evidence that Ms Luck was involved as a party in 38 court and six tribunal decisions between 2000 and 2019.  One was in the High Court, two in the Victorian Court of Appeal, 34 in the Federal Court (including eight in the Full Court), and one in the Federal Circuit Court.  Forty-four published decisions were before the primary judge.  With respect, his Honour correctly characterised Ms Luck as having engaged in extensive litigation, having appeared in 44 matters across different jurisdictions, and being “a voracious litigant.”  “It is against that background”, the primary judge observed, “that she has permitted this litigation to languish.”
  3. [32]
    His Honour noted that Ms Luck was represented by one and then another well-known no-win no-fee personal injuries litigation firm from the commencement of the proceeding until September 2002.  His Honour concluded:

“The last firm to act did not withdraw because of issues related to funds, but rather because she would not accept advice and give it instructions.  It is clear that her financial circumstances played no role in the failure by her to prosecute the action.”

  1. [33]
    The evidence of Ms Luck actively conducting litigation in many other courts and tribunals, accepted by the primary judge and unchallenged in this court, fundamentally undermined her limited explanation for the delay in the proceeding based on her disability, homelessness and extremely limited means.

Delay causing prejudice to the respondent

  1. [34]
    Finally, the primary judge identified the prejudice to the respondent caused by the delay in the proceeding.  In 1995, the respondent held the Toowong Village Shopping Centre and carpark as trustee of a fund.  The ultimate ownership of the respondent had changed since December 2002.  The trust documentation for the relevant fund had not been located, although a search had been undertaken.  The respondent’s former solicitors’ file could not be located and had likely been destroyed.
  2. [35]
    The primary judge relied on another specific prejudice from the delay.  Of the medical specialists and ancillary professionals, his Honour noted:

“Many of the medical practitioners cannot be located; they are either retired or perhaps have died.  It is unsurprising that difficulty has been revealed in locating the original investigator retained by the [respondent], and another officer who was employed by the proprietor of the company, that is, by the [respondent] at the time.  No doubt their records can be turned up, but nonetheless each of those matters presents as a problem, particularly if they can be located, because of the passing of time and the effect that will have on their recall of events, if indeed they have any.”

  1. [36]
    His Honour observed that “even without proved prejudice, a long delay gives rise to a general presumption of prejudice.”
  2. [37]
    These three findings explain the primary judge’s order dismissing Ms Luck’s application for leave to proceed.  No other finding was necessary for that result.

Other findings

  1. [38]
    Most of the other findings were undisputed facts: the dates certain steps were taken; the failure to comply with court orders and directions; and the stage the proceeding had reached.  The respondent had raised the threat of striking the proceeding out for want of prosecution as early as November 1999.  The primary judge found that a dismissal for want of prosecution would conclude the proceeding.
  2. [39]
    His Honour found the significance of a 19-year delay in this proceeding ought to have been apparent to Ms Luck from her engagement with some of the other court proceedings in which she had been a moving party.
  3. [40]
    We consider below some of the primary judge’s other findings, raised in the appeal.

The grounds of appeal

  1. [41]
    In her notice of appeal, Ms Luck set out 11 grounds of appeal.
  2. [42]
    Three share some commonality:
    1. (a)
      Ground 2(b) that the primary judge “erred in law by failing to consider and deal with the appellant’s submissions, affidavits and evidence”, including the oral submissions made by Ms Luck at the hearing;
    2. (b)
      Ground 2(c) that his Honour “erred in law by failing to give reasons for failing to consider and deal with the appellant’s submissions, affidavits and evidence”; and
    3. (c)
      Ground 2(h) that “it was not open to the learned Judge to accept each of the submissions of the respondent when failing to consider or deal with the appellant’s submissions and evidence.”
  3. [43]
    Ground 2(i) is that “it was not open to the learned Judge in the circumstances and on the material available to determine quantum in respect of the injuries and loss and damage suffered by the appellant.”
  4. [44]
    Ms Luck’s other seven grounds of appeal are statements:
    1. (a)
      Ground 2(a) that “the Honourable Court erred in law”;
    2. (b)
      Ground 2(d) that “the learned Judge erred in law by allowing extraneous and irrelevant matters to guide and effect his determination”;
    3. (c)
      Ground 2(e) that “the learned Judge mistook facts of the matter in the making of his determination”;
    4. (d)
      Ground 2(f) that “the learned Judge exercised a discretionary power in accordance with a rule or policy without regard to the merits of the appellant’s particular case”;
    5. (e)
      Ground 2(g) that “procedures that were required by law to be observed in connection with the making of the determination were not observed”;
    6. (f)
      Ground 2(j) that “the appellant apprehends bias on the part of the learned Judge”; and
    7. (g)
      Ground 2(k) that “the appellant was denied natural justice.”
  5. [45]
    It is convenient to deal with the grounds of appeal in this same order.

Grounds 2(b), 2(c) and 2(h): failure to consider or deal with Ms Luck’s case for leave to proceed

  1. [46]
    The three grounds based on the common contention that the primary judge failed “to consider or deal with the appellant’s submissions, affidavits and evidence” must be rejected.
  2. [47]
    In her oral submissions to this court, Ms Luck said her:

“circumstances of disability, impecuniosity and homelessness are necessary to bring to your attention because they are the grounds on which I as the appellant am claiming that the judge did not consider and deal with them”.

  1. [48]
    In the reasons, the primary judge quoted in full the principal paragraph of Ms Luck’s explanation for the delay, which was reproduced several times in her affidavits and written submissions, and which she read to his Honour during her oral submissions:

“I am the plaintiff and a disabled person receiving Centrelink aged pension. I am proceeding in the District Court of Queensland in person pursuant to section 52 of the District Court of Queensland Act and in accordance with the civil procedure rules. I am also in financial hardship due to the aforementioned. I have special needs which require reasonable adjustments, special consideration, and various economic, physical and social concessions pursuant to the Disability Discrimination Act, the United Nations Convention on the Rights of Persons with Disabilities, the Australian Human Rights Commission Act and the articles of the covenants and treaties attached thereto and the International Covenant on the Economic, Social and Cultural Rights.”

  1. [49]
    His Honour accepted that Ms Luck was “a person of extremely limited means” but rejected her submission that this explained the delay.  Ms Luck was “represented by a number of well-known no-win no-fee personal injuries litigation firms”.  They did not withdraw for financial reasons, but because Ms Luck would not provide instructions.  His Honour concluded that “her financial circumstances played no role in the failure by her to prosecute the action.”
  2. [50]
    The primary judge identified other evidence inconsistent with Ms Luck’s explanation.  This included evidence from the medical reports about the extent of her injury and any consequent impairment.
  3. [51]
    The primary judge considered the extent of other litigation which Ms Luck had pursued between 2000 and 2019 in other courts and tribunals, notwithstanding her disabilities, financial hardships and special needs. From this conduct, his Honour inferred that Ms Luck “deliberately chose to pursue other litigation ahead of prosecuting this claim, for no reason that is apparent.”
  4. [52]
    His Honour also dealt with Ms Luck’s submission that the delay was principally attributable to the respondent’s failure to serve a statement of expert and economic evidence in December 2002.[9]  Ms Luck repeated the same submission in this court.  Ms Luck submitted that she waited more than 19 years expecting the respondent to deliver such a statement.  Of this submission, his Honour found it ignored:

“the underlying premise of litigation that the onus lies with the party prosecuting its claim to advance its claim, not [on] a party defending. The defendant in this instance has made no counterclaim, so in my view it was well within its rights in awaiting the plaintiff’s prosecution of her claim. She did not.”

  1. [53]
    Ms Luck never sought the court’s assistance to progress the proceeding.  She filed no application for an order that the respondent deliver a statement of expert and economic evidence.  Even in June 2022, when she filed the application for leave to proceed, Ms Luck did not seek an order requiring the respondent to serve a statement.  As the primary judge concluded, with respect correctly, Ms Luck allowed the proceeding to languish during that time.
  2. [54]
    The primary judge dealt with Ms Luck’s submissions and the evidence she relied on at the hearing.  After doing so, the primary judge concluded Ms Luck had not provided a satisfactory explanation for the delay.  His Honour’s conclusion should not be set aside on these grounds.

Ground 2(i): the quantum of Ms Luck’s claim

  1. [55]
    The next ground of appeal is that “it was not open to the learned Judge in the circumstances and on the material available to determine quantum in respect of the injuries and loss and damage suffered by the appellant.”

Did the primary judge determine the quantum of the claim?

  1. [56]
    Before the primary judge, the respondent relied on reports from Dr Atkinson (a neurological surgeon), Dr Gillett (an orthopaedic surgeon), and Dr Robin (an orthopaedic surgeon).  The primary judge quoted from some passages from each in the reasons.  His Honour did so after observing that the proceeding was not “well developed” and the allegations in the plaint were “broad”.  The references to the medical reports showed Ms Luck’s personal injury claim in a more focused way.
  2. [57]
    It is fair to say that these medical reports are consistent with a less serious injury to Ms Luck than she asserts in her submissions and her affidavits.  The primary judge’s observations about a possible award for Ms Luck’s injury claim were expressed speculatively.  His Honour did not determine the quantum of her loss and damage, as Ms Luck asserts in this ground of appeal.  Nor did he deal with liability.
  3. [58]
    The apparent weakness of a claim may be relevant to granting leave to proceed.  In Keioskie v Workers’ Compensation Board of Queensland, McPherson JA expressed the view that, “[o]ften it may be the very frailty of the claim that is the root cause of the delay in prosecuting it.”  However, his Honour had cautioned:

“That is not to say that the hearing of an application of this kind is to be used as an opportunity for a premature trial of issues of liability or even quantum”.[10]

  1. [59]
    The primary judge’s assessment of the possible quantum of Ms Luck’s claim was not a major consideration in his Honour’s ultimate determination to refuse leave to proceed.  Whether or not his Honour determined the quantum of the claim, and whether or not this was an error, is of little importance in this appeal.  The important findings made by his Honour were those noted above: that the proceeding had been characterised by delay; that Ms Luck had not provided a satisfactory explanation for the delay; and that the delay had caused prejudice to the respondent.  These findings were sufficient to refuse leave to proceed, and none of them could have been altered by different findings on the nature of Ms Luck’s injury or additional evidence on that topic.[11]

Were the reports privileged?

  1. [60]
    Ms Luck submitted that the reports by Drs Atkinson, Gillett and Robin were obtained by her former solicitors and are privileged.  She said her solicitors should not have given the reports to the respondent.  These submissions are rejected.
  2. [61]
    Since 1 July 1999, Ms Luck has been required to disclose the documents in her possession or under her control about her injury, loss or treatment, including identifying hospital and medical reports.[12]  The reports of these specialists were disclosed in Ms Luck’s list of documents filed on 18 November 1999.  No privilege was claimed.  In any event, a document consisting of a statement or report of an expert is not privileged from disclosure.[13]
  1. [62]
    Ms Luck herself disclosed the reports in the statements of loss and damage she served on 1 and 7 November 2002.  She made no privilege claim at that time.  Ms Luck was required, on request, to give the respondent a copy of any document identified in her statement of loss and damage.[14]

Grounds 2(a), 2(d), 2(e), 2(f), 2(g), 2(j), and 2(k): generic grounds of appeal

  1. [63]
    In her notice of appeal, Ms Luck did not identify any fact, matter, or circumstance giving rise to these grounds of appeal.  Her written submissions provided no content.  For completeness, her oral submissions about them are summarised here.

Mistakes of fact - 2(e)

  1. [64]
    Ms Luck said that the absence of references in his Honour’s reasons to her filing a notice that she was acting in person in September 2002, her earlier change of solicitor filed in January 1999, and her telephone call to the respondent’s solicitor in December 2002, showed the primary judge “omitted and mistook relevant facts in evidence”.  None of these things was a step towards the conclusion of the proceeding.  They were not relevant for his Honour’s decision.

Apprehended bias - 2(j)

  1. [65]
    Ms Luck contended that the primary judge’s decision was tainted by bias.  She said:

“in respect of the issue of ostensible bias, the judge’s order was ambiguous and failed to precisely identify the ground for dismissing the proceeding. The failure to specify the ground creates a risk that the decision was based on extraneous considerations, which, if the errors of law upon which this appeal is grounded are affirmed, the appellant submits that this ambiguity in the making of the order and the failure to consider the appellant’s arguments and evidence creates a reasonable apprehension of bias on the part of the judge.”

  1. [66]
    The order dismissed the whole of the proceeding pursuant to s 22(2) of the Civil Proceedings Act 2011 (Qld).  The inclusion of an alternative basis for the same order was unnecessary.  It was not ambiguous. In the reasons, his Honour explained the grounds on which the order was made. There was no “risk” that extraneous considerations were involved.  As noted above, the primary judge did consider Ms Luck’s arguments and evidence.  There is no reasonable apprehension of bias on the part of the primary judge.

Denial of natural justice - 2(k)

  1. [67]
    Ms Luck said she did not have the opportunity to reply to the respondent’s oral submissions at the hearing below.  The respondent made no oral submissions.  Ms Luck was wrong in thinking she had “a basic fundamental right” to reply to submissions that were not made. Ms Luck had filed written submissions in reply to the respondent’s written submissions.  She addressed them in her oral submissions.  There was no denial of natural justice in this respect.
  2. [68]
    Ms Luck also said she was denied procedural fairness because a document she had lodged with the registry on 28 July 2022 had appeared in the court file index for a short period as Document 30, before it was removed.
  3. [69]
    The document was a Form 59A Request for Consent Order of Registrar.  It was signed by Ms Luck.  It was not signed by anyone on behalf of the respondent.  It attached a proposed “Order” with some directions for her leave application and an order vacating a hearing date on 13 July 2022.  A copy of the document was exhibited to Ms Luck’s affidavit sworn on 30 June 2022.  Also exhibited was a registry note.  The note refers to the document and states:

“Filed in error.  Form 59A Request for Consent Order of Registrar was filed with Document 29 (as exhibit “GL05” to the Affidavit filed 28 July 2022).”

  1. [70]
    The copy in the appeal record shows the request was stamped by the registry as being filed on 28 July 2022.  That stamp has been crossed through.
  2. [71]
    Ms Luck told this court:

“If I’m to make steps, and the registry’s supposed to document them, they have to make them properly, and if they don’t do it properly, then I’m going to make a complaint about procedural unfairness, because it is.”

  1. [72]
    The document was not of any effect.  It was not a request for a consent order because it was not signed by both parties.  No procedural unfairness was occasioned by the correction of the court file record in this way.

The remaining grounds - 2(a), 2(d), 2(f) and 2(g)

  1. [73]
    Ms Luck made no written or oral submissions to give content to ground 2(a), 2(d), 2(f) or 2(g).
  2. [74]
    A review of the primary judge’s reasons does not reveal errors of the kind Ms Luck has raised.  None of these grounds of appeal has any merit.

Conclusion

  1. [75]
    The primary judge’s conclusions in the three important respects noted above were consistent with the evidence.  His Honour considered Ms Luck’s submissions and the evidence she adduced on these topics.  His Honour’s reasons include, with respect, logical explanations for rejecting Ms Luck’s submissions and finding otherwise.
  2. [76]
    The decision is not unreasonable or plainly unjust.[15]  It is not possible to say that the primary judge’s discretion miscarried in dismissing Ms Luck’s application for leave to proceed and dismissing the proceeding for want of prosecution.  His Honour ordered that Ms Luck, as the wholly unsuccessful party, pay the respondent’s costs of the application.  Ms Luck has not shown his Honour’s discretion was wrongly exercised in any respect.
  3. [77]
    The appeal should be dismissed with costs.

Footnotes

[1]Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202, [3]-[4] (McMurdo P; Fraser JA agreeing).

[2]  The respondent does not appear to have taken any point about the delay between 18 November 1999, when her solicitors filed and served Ms Luck’s list of documents, and 1 November 2002, when Ms Luck served her statement of loss and damage.

[3]  Ms Luck submitted that her 18 December 2002 telephone call to the respondent’s then solicitor was a step.  It was not.  However, whether the last step was on 7 November 2002 or 18 December 2002 is of no significance in a delay longer than 19 years.

[4]  There was an adjournment between 11.26 and 11.44 am.

[5]  This was the operative part of the order.  His Honour made a “further or alternative” order dismissing the whole of the proceeding pursuant to UCPR, r 280.

[6]  [1999] 2 Qd R 113, 124.

[7]  [2000] QCA 178.

[8]William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, 496 (McTiernan, Kitto, Taylor and Owen JJ).

[9]  By UCPR, r 550, it had been due within 28 days after the respondent was served with Ms Luck’s statement of loss and damage.  So, it would have been due about 5 December 2002.

[10]  [1992] QCA 304.

[11]  Ms Luck referred to a further report by Dr Robin in her oral submissions before the primary judge.  She did not put it into evidence.  A report by Dr Robin of 24 November 1998 was in the supplementary appeal record book.

[12]  See UCPR, r 547(3)(f) and r 548(1)(a).  Before 1 July 1999, Ms Luck was bound by the equivalent provisions in DCR, rr 149A(3)(f) and (3A).

[13]  UCPR, r 212(2).

[14]  UCPR, r 548(2).

[15]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

Close

Editorial Notes

  • Published Case Name:

    Kuperman v Permanent Trustee Australia Limited

  • Shortened Case Name:

    Kuperman v Permanent Trustee Australia Limited

  • MNC:

    [2023] QCA 54

  • Court:

    QCA

  • Judge(s):

    Mullins P, Dalton JA, Bradley J

  • Date:

    28 Mar 2023

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC595/98 (No citation)26 Sep 2022Application for leave to proceed in proceeding for damages for personal injury; application for leave to proceed and whole of proceeding dismissed: Burnett DCJ.
Notice of Appeal FiledFile Number: CA13003/2224 Oct 2022Notice of appeal filed.
Appeal Determined (QCA)[2023] QCA 5428 Mar 2023Appeal dismissed: Mullins P, Dalton JA and Bradley J.
Special Leave Refused (HCA)[2023] HCASL 10903 Aug 2023Special leave refused: Edelman and Gleeson JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Artahs Pty Ltd v Gall Standfield & Smith (A Firm)[2013] 2 Qd R 202; [2012] QCA 272
3 citations
Jump To
Cite 1 - [2012] QCA 272
Cite 2 - [2013] 2 Qd R 202
Cite 3 - [2013] 2 Qd R 202
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
3 citations
Jump To
Cite 1 - [1998] QCA 114
Cite 2 - [1999] 2 Qd R 113
Cite 3 - [1999] 2 Qd R 113
House v R (1936) HCA 40
1 citation
Jump To
Cite 1 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Keioskie v C B Baker Brisbane Pty Ltd [1992] QCA 304
2 citations
Jump To
Cite 1 - [1992] QCA 304
Cite 2 - [1992] QCA 304
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6
1 citation
Jump To
Cite 1 - [1963] HCA 6
William Crosby & Co Pty Ltd v The Commonwealth of Australia (1963) 109 C.L.R., 490
2 citations
Jump To
Cite 1 - (1963) 109 C.L.R., 490
Cite 2 - (1963) 109 C.L.R., 490

Cases Citing

Case NameFull CitationFrequency
WorkCover Queensland v Lismore City Council [2024] QSC 2922 citations
1

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