Cormie v Orchard

[2001] QCA 546

SUPREME COURT OF QUEENSLAND

CITATION:

Cormie v Orchard & Anor [2001] QCA 546

PARTIES:

ANNETTE CHRISTINE CORMIE
(plaintiff/appellant)
v
MARK RAYMOND ORCHARD
(first defendant/first respondent)
EBSWORTH & EBSWORTH (a firm)
(second defendant/second respondent)

FILE NO/S:

Appeal No 7419 of 2001
SC No 12033 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2001

JUDGES:

McMurdo P, Thomas JA and Atkinson J
Judgment of the Court

ORDER:

1.   Allow the appeal.

2.   The respondent Orchard to pay the appellant’s costs of the appeal to be assessed.

3.   The order of 20 July 2001 be set aside and replaced with an order granting leave to bring the amended application but dismissing the first defendant’s application to amend his defence and further ordering the first defendant to pay the costs of the plaintiff and of the second defendant of that application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – AMENDMENT – DISCONTINUANCE - first solicitor failed to plead limitation defence – where plaintiff accordingly discontinued alternative claim against second solicitor – after matter set down for trial first solicitor granted leave to plead a limitation defence – where order also permitted plaintiff to re-join the second solicitor – where trial judge considered limitation period for the plaintiff’s claim against the second solicitor not expired –whether order ought to have been made – whether plaintiff prejudiced by order – discretion to permit late amendments to pleadings miscarried

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE – COUNTER OFFER - whether promisee’s description of offer as ‘offer to settle’ converted his acceptance into a counter offer – agreement to discontinue action – whether plaintiff’s right of action destroyed

Fair Trading Act 1989 (Qld), s 99(2)
Limitation of Actions Act 1974 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 69(2), 74(4), r 74(5), r 304(2), r 310(1)

The Owners of the Cargo of the Kronprinz v The Owners of the Cargo of the Kronprinz (1887) 12 App Cas 256, considered

COUNSEL:

P A Keane QC with G R Mullins for the appellant
H B Fraser QC with J A McDougal for the first respondent

SOLICITORS:

Quinn & Scattini for the appellant
Quinlan Miller & Treston for the first respondent

1. THE COURT: This is a plaintiff’s appeal against an order granting leave to a defendant to amend his defence so as to raise a defence under the Limitation of Actions Act 1974. The order also permits the plaintiff to proceed to join a second defendant to the action, in respect of whom the plaintiff had previously filed a notice of discontinuance. The making of such an order was opposed by the plaintiff and the second defendant.

1. The appellant (“the plaintiff”) was injured in a workplace incident in Moree in July 1985.  It is common ground that legal proceedings for damages…