Digfield Pty Ltd v Manos

[1996] QCA 498

[1996] QCA 498

COURT OF APPEAL

McPHERSON JA
PINCUS JA
THOMAS J

Appeal No 9542 of 1996

DIGFIELD PTY LTD  Appellant/Defendant

and

LAMBROS MANOS  Respondent/Plaintiff

BRISBANE

..DATE 18/11/96

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal to this Court from a decision of a District Court Judge given in Chambers.  In the Court below the District Court Judge granted the plaintiff's application for leave to proceed in an action by the plaintiff for damages for personal injury suffered in the workplace.

In the prosecution of that action there had been lengthy delay after the action had been instituted by issue of the plaint.  The Judge in granting the application for leave to proceed appears to have found that, because of the comparatively recent death of a witness named Rogers, the defendant employer would sustain prejudice if leave to proceed were granted.

He, nevertheless, gave the plaintiff leave to proceed notwithstanding that no step in the action had been taken for a considerable time.  Some, perhaps many, Judges might well have taken a different view of the matter and might have refused the application; but, despite the eloquence of
Mr Perry who appeared before us on the application by the defendant for leave to appeal against the decision in the Court below, I am not able to identify any important question of law or justice which requires or permits the intervention of this Court in the matter now sought to be brought before us.

Aspects relied on by Mr Perry seem to me, on the whole, to be rather matters of emphasis than principle, and not such as to attract the leave which is needed in order to enable this matter to go forward.  I would therefore refuse the application for leave to appeal.

PINCUS JA:  I agree, and I would add that it cannot be an important question of justice, that if leave to appeal is not granted, the applicant may lose a case which, had the plaintiff proceeded in due time, the applicant might well have won.  That is so whenever the delaying plaintiff gets leave to proceed under Rule 377, nor is it, in my view speaking generally, a ground of leave to appeal that the Judge has wrongly balanced the factors which bear upon the exercise of discretion. 

The respondent/plaintiff was perhaps fortunate to obtain an order on what seems to me to have been rather a weak case for leave to proceed.  Nevertheless, it seems to me clear that if we are to apply the terms of Section 118 faithfully this is not a matter in which leave to appeal could be given. 

THOMAS J: I agree with what my brothers have said. I was concerned for a time that there may have been a question of justice raised, but my concerns have been allayed by the giving of two undertakings by counsel for the respondent. One is, in effect, not to raise objection to the tendering of the statement of the deceased person under Section 92 of the Evidence Act upon proof of the fact that it was given to a representative of the defendant. The other will prevent any further change of ground in the matter of amending the plaint.

I agree that the application should be refused.

McPHERSON JA:  Well, the application for leave to appeal is dismissed. 

MR BYRNE:  Your Honour, there is just one other question.  I am instructed to ask for costs, but I will draw to your attention, Your Honour, that I am legally aided.

McPHERSON JA:  Yes.

PINCUS JA:  Why does that make a difference?

MR BYRNE:  I am just drawing it to your attention, Your Honour.

PINCUS JA:  But does it make a difference?  I do not know why you do it.

MR BYRNE:  It has been so long since Legal Aid has actually aided a civil matter.  I know in the Family Court that sometimes it is given, but I have no law with which to assist you.

McPHERSON JA:  All right.  Anything to say, Mr Perry?

MR PERRY:  All I an point to are the undertakings that were given.

McPHERSON JA:  The order is that the applicant for leave to

appeal pay the respondent's costs of and incidental to the

application.

-----