Ellis v Millican

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.