Eccles v Westpac

The case of Eccles v Westpac was heard in the Supreme Court of Queensland. The plaintiff, John Mark Eccles, sought leave to take fresh proceedings under R.S.C. O.90 r. 9(2) due to the lack of any steps taken in the action for over three years. The plaintiff's claim against Westpac Banking Corporation involved allegations of breach of warranty, negligence, breach of fiduciary duty, and a request for a declaration and damages under the Trade Practices Act. The defendant opposed the application, arguing that the plaintiff had failed to provide a reasonable explanation for the delay and that the delay would inevitably cause prejudice to the defendant.

The court examined the nature of the plaintiff's claims, which relied heavily on conversations and advice given by bank officers in 1985 and 1986. The plaintiff had not taken any steps in the action after 17 January 1992, and the application for leave to proceed was not made until 29 July 1997. The court considered the plaintiff's affidavit, which stated that he did not recall being advised of the time limits by his previous solicitors and was only made aware of the provisions of O.90 r.9 by his present solicitor in late April 1997. The court noted that a satisfactory explanation for delay is not a condition precedent to obtaining leave to proceed, but it is a relevant circumstance.

The court held that the plaintiff had not shown good reason for excepting his action from the general prohibition contained in O. 90 r. 9(2) due to the significant delay and lack of an acceptable explanation. The court also noted the prejudice to the defendant, as the key witnesses and relevant documents were from over a decade ago, and the bank officers involved had long since retired. The court dismissed the plaintiff's application and ordered the plaintiff to pay the defendant's costs of and incidental to the application.