Evans v Creevey - [2002] QCA 70

[2002] QCA 70

COURT OF APPEAL

DAVIES JA
MUIR J
PHILIPPIDES J

Appeal No 520 of 2002

TREVOR ALLAN EVANS Respondent

and

DANIEL JAMES CREEVEY Appellant

BRISBANE

..DATE 13/03/2002

JUDGMENT

MUIR J: The applicant defendant pursuant to section 118(3) of the District Courts Act 1967 seeks leave to appeal against a decision of a Judge of the District Court on
20 December 2001 giving leave to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules. The subrule provides that if no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the Court which may be made either with or without notice.

The circumstances in which an Appellate Court may interfere with the exercise by a primary Judge of a discretion are discussed in an oft repeated passage in the judgment of Dixon, Evatt and McTiernan JJ in House v. The King (1936)
55 CLR 499 at 504-505, which it is unnecessary for me to repeat.

It is also necessary to bear in mind that the application is for leave to appeal from an interlocutory order. Appellate Courts exercise particular caution when reviewing such decisions for the reasons discussed in Adam P Brown Male Fashions Proprietary Limited v. Phillip Morris Incorporated (1981) 148 CLR 170 at 176-177, Re the will of Gilbert, deceased (1946) SR NSW 370 at 374, and Decor Corporation v. Dart Industries Inc (1991) 33 FCR 397 at 398-9.

The applicant alleges the following errors on the part of the learned primary Judge:

(a) failure to take into account that the critical events giving rise to the litigation occurred in early to mid 1990 in excess of 11 years prior to the application and about five years prior to the institution of proceedings;

(b) failure to take into account the fact that the action is still not ready for trial and that discovery and inspection are outstanding and the respondent has yet to obtain expert valuation and other evidence;

(c) failure to take into account the respondent's failure to satisfactorily explain delay;

(d) failure to give any apparent weight to the respondent's failure to comply with Court orders on a number of occasions;

(e) failure to apply the correct test to the question of prejudice namely whether the respondent had satisfied the onus of showing that any prejudice the applicant may suffer is not such as to cause injustice to the applicant should the action be permitted to continue.

It is submitted also that the primary Judge erred in concluding that the delay relating to a mediation engaged in by the parties should not count against the respondent.

Before considering these complaints further, it is desirable to explain the nature of the action and to say a little about its conduct. The respondent claims $84,180 damages for negligence and/or breach of contract against the applicant.

In summary, it is alleged that the applicant was a member…

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.

Continue reading Evans v Creevey

Details

AGLC: Evans v Creevey [2002] QCA 70
Case: [2002] QCA 70
Decision Date: 13/03/2002

CaseChat Overview and Summary

Evans v Creevey is a case in which the appellant, Daniel James Creevey, sought leave to appeal against a decision of the District Court, which allowed the respondent, Trevor Allan Evans, to proceed with legal action against him. The dispute revolves around allegations of professional negligence and breach of contract stemming from a property settlement and maintenance dispute between Evans and his former wife. Evans claims that Creevey, as his solicitor, failed to obtain the Family Court's approval for a maintenance agreement, leading to financial losses and legal fees. The crux of the case is the substantial delay in the proceedings and the effect this has had on both parties.

The legal issues before the Court of Appeal were whether the primary judge correctly exercised his discretion in allowing Evans to proceed with the action, given the significant delay and the potential prejudice to Creevey. Creevey argued that the delay in the mediation process and the respondent's failure to satisfactorily explain the delay were critical errors. He also contended that the primary judge did not adequately consider the prejudice he might suffer due to the passage of time, the unavailability of documents, and the dimming of memories. Furthermore, Creevey asserted that the primary judge did not sufficiently weigh the merits of the case against the prejudice he might suffer if the action proceeded.

The Court of Appeal found that while there was some delay attributable to dilatory conduct by the respondent's legal advisers, this did not necessarily warrant reconsideration of the primary judge's decision. The Court held that the primary judge was entitled to consider the merits of the respondent's claim, which appeared to have substance. The Court emphasised that the primary judge's approach was to balance the potential prejudice to Creevey against the merits of Evans's claim. The Court concluded that the primary judge's decision was not attended by sufficient doubt to warrant reconsideration and dismissed the appeal with costs.

In summary, the Court of Appeal upheld the primary judge's decision to allow Evans to proceed with the action, finding that the delay and potential prejudice to Creevey did not outweigh the merits of Evans's claim. The appeal was refused, and Creevey was ordered to pay costs.

Orders