Ellis v Millican - [1999] QSC 30

IN THE SUPREME COURT
OF QUEENSLAND

No. 616 of 1995

Brisbane
Before White J
[Ellis v Millican]
BETWEEN:

REGINALD JOHN ELLIS
Plaintiff
AND:

GRAHAM DAVIES, WILLIAM MILLICAN AND KENNETH PHILP
trading under the name style or firm of DAVIES PHILP MILLICAN

Defendants

REASONS FOR JUDGMENT - WHITE J
Judgment delivered 25 February 1999

CATCHWORDS: Leave to proceed - RSC O.90 r.9 - professional negligence action - earlier personal injuries actions neglected - delay - prejudice.

Counsel:Mr P E Smith for the applicant/plaintiff.
Mr R Alldridge for the respondent/defendant.

Solicitors:Stephens & Tozer, as town agents for Michael Hefford,
for the applicant/plaintiff.

McInnes Wilson for the respondent/defendant.

Hearing Date: 19 February, 1999

IN THE SUPREME COURT
OF QUEENSLAND

No. 616 of 1995

Brisbane
Before White J
[Reginald John Ellis v Davies Philp Millican]
BETWEEN:

REGINALD JOHN ELLIS
Plaintiff
AND:

GRAHAM DAVIES, WILLIAM MILLICAN AND KENNETH PHILP
trading under the name style or firm of DAVIES PHILP MILLICAN

Defendants

REASONS FOR JUDGMENT - WHITE J
Judgment delivered 25 February 1999

1.  The plaintiff issued a writ against the defendants trading under the firm name of Davies Philp Millican dated 11 April 1995 claiming damages for negligence. The defendants carried on practice as solicitors in partnership for a short time in 1986. On 8 February 1999 the plaintiff issued a summons returnable on 19 February for leave to proceed pursuant to O.90 r.9 of the rules, which the defendants oppose being given, and for interlocutory judgment against the defendants. The latter relief was not pursued. It was based, it seems, on some notion that an entry of appearance or defence had not been filed. The last relevant step for the purposes of the rule was the service of the writ in May 1995 on Mr Philp.
2.  In order to resolve this application it is necessary to describe at some length the circumstances leading to the issue of the writ in this action.
3.  The plaintiff was born on 6 March 1955. On or about 21 May 1982, he was employed by F A Pidgeon & Sons Pty Limited as a carpenter. He alleges he sustained injury to his back whilst stripping concrete formwork from a column located at the Woodridge Shopping Centre. He continued to work although in considerable pain.
4.  On or about 26 March 1983 the plaintiff was employed by Tafcom Pty Ltd also as a carpenter. In the course of his employment at a job site in Astor Terrace in Brisbane the plaintiff was required to strip formwork from a ceiling. There was no scaffolding so he stacked Besser blocks and stood on them to use a wrecking bar. A sheet of ply gave way and he fell over and sustained personal injury. He was able to persevere with his work for a short time and consulted with his general practitioner. X-rays were reported as normal.
5.  In October 1983 when surfing he experienced an episode which aggravated his back pain. Shortly afterwards he attended at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ellis v Millican and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] QSC 30
Decision Date: 25 February 1999

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff, Reginald John Ellis, issued a writ against the defendants, Graham Davies, William Millican, and Kenneth Philp, trading under the firm name of Davies Philp Millican, on 11 April 1995, claiming damages for negligence. The defendants, who had practiced as solicitors in partnership in 1986, opposed the plaintiff's application for leave to proceed, contending that the application was brought too late and that the plaintiff would suffer prejudice. The primary legal issue before the court was whether the plaintiff should be granted leave to proceed with his professional negligence action against the defendants, considering the significant delay in bringing the claim and the potential prejudice to the defendants. The court considered the plaintiff's inactivity between 1986 and 1993, the inactivity of his lawyers, and the prejudice to the defendants if the action were to proceed.

The court, in its judgment, determined that while the plaintiff's inactivity and the inactivity of his lawyers contributed to the delay, the primary responsibility for the delay lay with the plaintiff. However, the court also noted that the prejudice suffered by the defendants due to the delay was not significant enough to warrant denying the plaintiff leave to proceed. The court highlighted that the prejudice was inherent in the nature of the case, as it involved assessing the plaintiff's lost chances to pursue his actions against the original defendants. The court concluded that the prejudice from the delay did not outweigh the plaintiff's right to pursue his claim. Consequently, the court granted the plaintiff leave to proceed with his action against the defendants, under Order 90 Rule 9 of the Rules of the Supreme Court. The court also indicated that it would hear submissions regarding costs.

Orders