Benz v Clough - [2008] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

Benz & Anor v Clough [2008] QCA 125

PARTIES:

ELIZABETH MINA BENZ
(first applicant/first appellant)
JOHN CAMPBELL HOWARD

(second applicant/second appellant)
v
PAUL HENRY CLOUGH
(respondent)

FILE NO/S:

Appeal No 248 of 2008
SC No 9511 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

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

JERSEY CJ: de 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.

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.

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…

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.

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Details

Case: [2008] QCA 125
Decision Date: 30 May 2008

CaseChat Overview and Summary

The appeal in Benz v Clough concerns the procedural matter of whether the appellants, who had filed a claim in the Supreme Court of Queensland in 2002 for damages due to alleged professional negligence by the respondent, were granted leave to renew their claim after it had not been served on the respondent. The appellants' initial claim and statement of claim were filed on 16 October 2002, but they failed to serve the claim on the respondent. Each year from 2003 to 2006, the appellants attempted to renew their claim, and they subsequently applied for leave to renew the claim under rule 24(4) of the Uniform Civil Procedure Rules 1999 (Qld). The central legal issue was whether there existed sufficient grounds to grant leave to renew the claim after such a prolonged period.

The court examined the reasons for the delay in serving the claim and the prospects of the claim succeeding if it were to proceed. It considered the appellants' arguments that they had not served the claim due to an oversight and that there was a reasonable prospect of the claim succeeding if renewed. The court also considered the respondent's argument that the delay was unreasonable and that it would be unjust to allow the claim to proceed after such a long period. Ultimately, the court found that the delay was unjustified and that there was no good reason to grant leave to renew the claim. The court determined that the appellants' oversight did not constitute a sufficient ground for the renewal of the claim, and the prospects of success did not outweigh the unfairness of the delay.

In light of the above considerations, the court dismissed the appeal. The court held that the appellants' failure to serve the claim within a reasonable time, coupled with the lack of compelling reasons for the delay, justified the denial of leave to renew the claim. The appeal was thus dismissed, and the appellants' claim was not allowed to proceed any further.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Benz & Anor v Clough [2008] QCA 125
PARTIES:	ELIZABETH MINA BENZ (first applicant/first appellant) JOHN CAMPBELL HOWARD (second applicant/second appellant) v PAUL HENRY CLOUGH (respondent)
FILE NO/S:	Appeal No 248 of 2008 SC No 9511 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
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