Carbone v AA Company Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Carbone v AA Company Pty Ltd [2006] QSC 293

PARTIES:

ANDREW JOHN CARBONE

Plaintiff

and

AA COMPANY PTY LTD

Defendant

FILE NO/S:

S5847/02

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

6 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2006

JUDGE:

Robin QC AJ

ORDER:

Application dismissed

CATCHWORDS:

Uniform Civil Procedure Rules r 24 – defendant applied to set aside series of registrar’s orders made ex parte for renewal of the claim – the evidence suggested there was no prejudice to the defendant

COUNSEL:

Applicant/Defendant –Mr M Grant-Taylor SC

Respondent/Plaintiff – Mr C Harding

SOLICITORS:

Applicant/Defendant –Eardley Motteram

Respondent/Plaintiff – Anne Murray & Co

1. The defendant applies for setting aside of registrar’s orders of 25 June 2003, 21 June 2004 and 27 June 2005 made under r 24(2) of the Uniform Civil Procedure Rules renewing the Plaintiff’s claim.  On the basis of success (even limited to the third order) the defendant seeks dismissal of the claim and judgment for it against the plaintiff.  The orders were all made ex parte; accordingly, as a person affected by them, the defendant is entitled to seek to have them set aside without reference to any time limit (doubtless, inordinate delay in the face of knowledge of an order might lead to embarrassment); the review process invoked is not an appeal.  See MQF v Corry [2000] QSC 416 at [9]; Capima Pty Ltd v Hansen [2005] QSC 208 at [30].

1. Rule 24(2) sets out two bases for a renewal for up to a year: reasonable efforts have been made to serve the defendant or there is another good reason to renew the claim.  Here, “other good reason” has been relied on.  (It may be noted that only if the renewal would apply to any period falling on or after the fifth anniversary of filing of the claim is the court’s leave necessary subparagraph: (4).)

1. The leading case of Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 (a decision of Stephen J sitting alone) was summarised authoritatively in the Court of Appeal by Pincus JA in Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [4]:

“(1)There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.

(2)The discretion may be exercised although the statutory limitation period has expired.

(3)Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.

(4)There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.”

Muirhead confirms that (2), without more, does not warrant favourable exercise of the discretion.

1. Orders as sought here were made in Capima, there being “no good reason” and risk…