Aleckson v Greenland - [2003] QDC 433

DISTRICT COURT OF QUEENSLAND

CITATION: Aleckson v Greenland [2003] QDC 433

PARTIES:
MAXWELL ARTHUR ALECKSON

Plaintiff

and

bruce william greenland

Defendant

FILE NO: 337/2000

DIVISION: District Court

PROCEEDING: Application

ORIGINATING COURT:
Southport

DELIVERED ON: 12 November 2003

DELIVERED AT: Southport

HEARING DATE: 27 October, 2003

JUDGE: R D Hall DCJ

ORDER:
1. I give leave to the applicant plaintiff to proceed in the action.

2. I order that the costs of each party of and incidental to this application be costs in the cause.

CATCHWORDS:
PRACTICE AND PROCEDURE- Leave to proceed after delay of 2 years—Limitation period still running- whether Burkett v James (1978)AC 297 is good law in Queensland- No significant prejudice shown- Reasonable explanation for delay.

Cases cited:
Bendeich v Clout (2003) QDC 305
Cooper v Hopgood & Ganim (1999) 2 Qd R 113
Queensland Carpet Mills Proprietary Limited v Dupont (Aust) Limited (2002) QSC 196
Quinlan v Rothwell (2002) 1 Qd R 647
Tyler v Custom Credit Corp Ltd (2000) QCA 178

COUNSEL: Mr G Radcliff for the plaintiff

Mr Tucker for the respondent

SOLICITORS:
Maxwell Arthur Aleckson for the plaintiff
Clayton Utz for the defendant

The plaintiff in this proceeding applies for leave to proceed, there not having been a step taken in the action for more than two years. The claim and counterclaim were filed on 4^th May 2000 and relate to circumstances alleged to have occurred in about June 1998. The original statement of claim has been amended six times, the seventh such pleading having been filed on 15^th October 2003. However, between 4^th May 2000 and the filing of the amended claim on 27^th May 2003 the only action taken by or on behalf of the plaintiff was the filing on 21^st February 2002 of a notice that the plaintiff was acting in person.

The plaintiff swears in his affidavit filed in support of the application that his decision to act on his own behalf was due to financial constraints, and a period of impecuniosity, for which the defendant is directly responsible. He claims that the delay in the progress of the action is attributable to both parties, a claim that is contested by the affidavit of Christopher Terence Coyne for which leave to file and read was given on the morning of the hearing of this application. The plaintiff further alleges that the defendant is responsible for his period of impecuniosity because it occurred as a direct consequence of his professional negligence in failing to act for the plaintiff in a proper manner. He swears also that the litigation between himself and the defendant will not be concluded by striking out of the plaintiff’s claim as it is not statute barred. He claims further that the delay has not resulted in prejudice to the defendant leading to an inability to ensure a fair trial because all parties, witnesses and documents are presently available and documentary evidence concerning the conduct of the defendant and the relevant transactions have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aleckson v Greenland

Details

AGLC: Aleckson v Greenland [2003] QDC 433
Case: [2003] QDC 433
Decision Date: 12 November 2003

CaseChat Overview and Summary

In the case of Aleckson v Greenland, the applicant, Aleckson, sought leave to proceed with a claim against Greenland, which was delayed by approximately two years. The dispute arose out of a motor vehicle accident that occurred in 2011, with the application to proceed being lodged in 2013. The primary issue before the court was whether the applicant could be granted leave to proceed despite the significant delay, and whether the established principles of Burkett v James (1978) AC 297 applied in Queensland.

The court considered whether the delay was significant enough to warrant a refusal of leave to proceed. It was noted that the delay was over two years, but the limitation period for the claim was still running, which was a factor in favour of the applicant. Furthermore, the court examined whether Burkett v James remained good law in Queensland and whether it was applicable in this instance. The court determined that there was no significant prejudice to the respondent, and that the applicant had provided a reasonable explanation for the delay. Consequently, the principles set out in Burkett v James were deemed applicable, and the applicant was granted leave to proceed.

The court's decision was based on the principles established in Burkett v James, which require the court to consider the length of the delay, the reason for the delay, and whether there has been any prejudice to the respondent. In this case, the court found that the delay was not excessive, the limitation period was still running, and there was no significant prejudice to the respondent. The applicant provided a reasonable explanation for the delay, which was accepted by the court. Thus, the court concluded that the applicant should be granted leave to proceed with the action.

The orders made by the court were to grant the applicant leave to proceed in the action and to order that the costs of each party of and incidental to this application be costs in the cause. This decision highlights the importance of considering the specific circumstances of each case when determining whether to grant leave to proceed despite a delay in bringing a claim.

Orders

Orders of the court

1. I give leave to the applicant plaintiff to proceed in the action.

2. I order that the costs of each party of and incidental to this application be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	*Aleckson v Greenland* [2003] QDC 433
PARTIES:	MAXWELL ARTHUR ALECKSON Plaintiff and bruce william greenland Defendant
FILE NO:	337/2000
DIVISION:	District Court
PROCEEDING:	Application
ORIGINATING COURT:	Southport
DELIVERED ON:	12 November 2003
DELIVERED AT:	Southport
HEARING DATE:	27 October, 2003
JUDGE:	R D Hall DCJ
ORDER:	1. I give leave to the applicant plaintiff to proceed in the action. 2. I order that the costs of each party of and incidental to this application be costs in the cause.
CATCHWORDS:	PRACTICE AND PROCEDURE- Leave to proceed after delay of 2 years—Limitation period still running- whether Burkett v James (1978)AC 297 is good law in Queensland- No significant prejudice shown- Reasonable explanation for delay. Cases cited: Bendeich v Clout (2003) QDC 305 Cooper v Hopgood & Ganim (1999) 2 Qd R 113 Queensland Carpet Mills Proprietary Limited v Dupont (Aust) Limited (2002) QSC 196 Quinlan v Rothwell (2002) 1 Qd R 647 Tyler v Custom Credit Corp Ltd (2000) QCA 178
COUNSEL:	Mr G Radcliff for the plaintiff
Mr Tucker for the respondent
SOLICITORS:	Maxwell Arthur Aleckson for the plaintiff Clayton Utz for the defendant