Blundstone v Johnson

Case [2010] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

Blundstone v Johnson & Anor [2010] QCA 148

PARTIES:

WARWICK CHARLES BLUNDSTONE
(applicant/respondent)
v
WAYNE PHILLIP JOHNSON
(first respondent/first applicant)
ALLIANZ AUSTRALIA INSURANCE LTD
ACN 000 122 850
(second respondent/second applicant)

FILE NO/S:

Appeal No 14429 of 2009
DC No 2365 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2010

JUDGES:

Holmes and Chesterman JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal is refused with costs

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – WHAT IS A JUDGMENT OR ORDER – where a consent order was made extending the limitation period for the bringing of a personal injuries action in relation to a motor vehicle accident – where respondent failed to proceed with the action within the time allowed under the consent order – where respondent sought a further extension of the limitation period – where applicant argued that the consent order amounted to a contract – where applicant argued that the existence of the contract was an important factor in the exercise of the court’s discretion in deciding whether to grant a further extension – where applicant argued that the existence of the contract warranted a rejection of the respondent’s application to further extend the limitation period – whether primary judge erred in granting a further extension of the limitation period

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where primary judge exercised the discretion available under s 57(2)(b) of the Motor Accidents Insurance Act 1994 (Qld) to extend, for a second time, the limitation period for the bringing of a personal injuries action in relation to a motor vehicle accident – whether primary judge properly exercised the discretion having regard to its statutory purpose

Limitation of Actions Act 1974 (Qld), s11
Motor Accidents Insurance Act 1994 (Qld), s 51D, s 57(2)(b)

Blundstone v Johnson & Anor [2009] QDC 351, approved
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Chavez v Moreton Bay Regional Council [2009] QCA 348, distinguished
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, distinguished
Moga v Australian Associated Motor Insurers Ltd [2008] QCA 79, considered
Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited
Paino v Hofbauer (1988) 13 NSWLR 193, cited
Paterson v Leigh & Anor [2008] QSC 277, approved
Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185, cited
Spencer v Nominal Defendant [2008] 2 Qd R 64; [2007] QCA 254, distinguished  
Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224,…

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Blundstone v Johnson [2010] QCA 148
Case
[2010] QCA 148
Decision Date

CaseChat Overview and Summary

In the case of Blundstone v Johnson, the respondent had previously been granted a consent order extending the limitation period for bringing a personal injuries action related to a motor vehicle accident. The respondent, however, failed to proceed with the action within the extended period. Subsequently, the respondent sought a further extension of the limitation period, which the applicant opposed. The applicant argued that the consent order constituted a contract, and its existence was a crucial factor in determining whether to grant another extension. The applicant further contended that the contract warranted the denial of the respondent's application for a further extension. The primary judge granted the extension, and the applicant appealed the decision, arguing that the primary judge had not properly exercised the discretion under the statutory provision.

The court had to determine whether the primary judge erred in granting a further extension of the limitation period for bringing a personal injuries action. The court also had to decide whether the primary judge properly exercised the discretion under the statutory provision, specifically section 57(2)(b) of the Motor Accidents Insurance Act 1994 (Qld). The court was tasked with considering the principles upon which the discretion was exercised in extending the limitation period for a second time. Furthermore, the court had to consider whether the existence of the consent order, as argued by the applicant, should have influenced the primary judge's decision.

The court found that the primary judge did not err in granting a further extension of the limitation period. The court held that the primary judge properly exercised the discretion available under the statutory provision. The court held that the primary judge considered all relevant factors in making the decision, including the statutory purpose of providing a fair opportunity for the injured party to bring an action. The court found that the primary judge had given appropriate consideration to the consent order but ultimately determined that it did not warrant the denial of the respondent's application for a further extension. The court held that the primary judge's decision was not erroneous or otherwise flawed.

The court refused the application for leave to appeal and ordered the applicant to pay the costs of the appeal.

Orders

Orders of the court

Application for leave to appeal is refused with costs

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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