Friend v Brooker - [2009] HCATrans 38

[2009] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S475 of 2008

B e t w e e n -
NICHOLAS MACARTHUR FRIEND
Appellant
and
FREDERICK CLARKSON BROOKER
First Respondent
FRIEND & BROOKER PTY LTD
Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MARCH 2009, AT 10.17 AM

(Continued from 4/3/09)

FRENCH CJ: Yes, Mr Newlinds.

MR NEWLINDS: Your Honours, we have brought some copies of the other report of Spottiswoode’s Case, if that is any assistance. They have been printed from Google but they look authentic enough. I think I am handing up seven copies.

FRENCH CJ: Thank you.

MR NEWLINDS: What I thought I would do this morning, your Honours, is firstly try and persuade your Honours that before the equity applies the person applying for relief needs to have paid more than their fair share of the debt; secondly, come to the question of quia timet and try and make good the proposition that there is a clear distinction between what is required for the right and what is required as a matter of discretion; thirdly, to the best I can, to answer Justice Heydon’s question about what the evidence was and what the findings were concerning payments, interest rates and the like, then go back to paragraph 12 and then take your Honours through the way the case was run and the pleadings to make good a submission that, even if everything I have said to date is wrong, the case should not have been decided upon the basis that it was.

GUMMOW J: What about the fiduciary point?

MR NEWLINDS: I was going to wait for reply for that, that being raised on the notice of contention.

HEYDON J: I just do not find that very attractive. You know what is coming.

MR NEWLINDS: I am happy to do it now.

HEYDON J: Is it not better for you to say what you want to say, then you have two chances?

MR NEWLINDS: All right, I will. And number six will be I will deal with the fiduciary. So, firstly dealing with fair share, as a matter of principle, we would ‑ ‑ ‑

GUMMOW J: Just stopping there, is there not an unjust enrichment claim as well?

MR NEWLINDS: Well, there is said to be.

GUMMOW J: Are you going to deal with that in reply too, are you?

MR NEWLINDS: No, I am going to deal with that when I deal with the pleadings and the way the case was run.

GUMMOW J: I see.

MR NEWLINDS: I am going to say there is no such thing as such thing as such a claim in unjust enrichment. So dealing first with the question of whether the person who is applying for relief has to have paid more than their share of the liability, and to use an example,…

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.

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Details

Case: [2009] HCATrans 38
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Queensland in a dispute between Friend and Brooker. The case concerned the interpretation and application of the *Uniform Civil Procedure Rules 1999* (Qld) and the *Limitation of Actions Act 1974* (Qld) in the context of a claim for damages arising from a motor vehicle accident.

The central legal issues before the High Court were whether the appellant's claim was statute-barred under the *Limitation of Actions Act 1974* and, if so, whether the court had the power to grant an extension of time for the commencement of proceedings. Specifically, the Court had to determine whether the appellant had established exceptional circumstances justifying an extension of time, and whether the respondent would suffer prejudice if an extension were granted.

The High Court analysed the principles governing the grant of extensions of time under the relevant legislation, emphasising the need for a balancing exercise between the appellant's right to pursue a claim and the respondent's right to be free from stale claims. The Court considered the appellant's explanation for the delay in commencing proceedings and the potential prejudice to the respondent, including the loss of evidence and the impact on their ability to defend the claim. The Court ultimately found that the appellant had not demonstrated sufficient grounds to warrant an extension of time.

The appeal was dismissed, and the orders of the Supreme Court of Queensland were affirmed.

Orders