Galpin v Myer Queensland Stores Ltd

[1997] QCA 487

[1997] QCA 487

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA
HELMAN J

Appeal No 9348 of 1997

MARCIA YVONNE GALPIN                  Appellant (Plaintiff)

and

MYER QUEENSLAND STORES LIMITED        Respondent (Defendant)

BRISBANE

..DATE 24/11/97

JUDGMENT

THE CHIEF JUSTICE:  It is accepted by the applicant plaintiff in the present case that from the point of view of the applicant an order extending time is necessary for dealing with an appeal which she would wish to have the Court hear. 

That order for extension of time is necessary because, although a notice of appeal was lodged, it is accepted that it was lodged outside the prescribed time for bringing an appeal.  The Court is informed that this was due to some erroneous view of the character of the appeal affecting the perception of what was the appropriate time limit for lodging a notice of appeal.

A central aspect for present purposes is that an order extending time is asked for to seek leave to appeal and, as it can be added, leave to appeal and any appeal will be against the exercise of a discretion. In the present case there is no appeal as of right even if it had been lodged in time. Leave is necessary due to the requirements of section 118 of the District Court Act.

Original proceedings were issued due to an accident that occurred in October of 1984 when the applicant in the then Myer Store premises tripped and fell on some stairs.  It is said that her fall was caused by a tile or some part of the stairs being in a worn condition and therefore the claim is that the respondent Myer Queensland Stores Limited is liable in negligence or otherwise to the plaintiff/applicant.

The matter has been very long delayed in getting to this point.  We are now asked to make orders to keep alive a claim based on an accident of almost 13 years ago.  The primary Judge was asked to give leave to proceed since the last step had been more than three years ago, and he was asked by the respondent defendant to strike out the action because of the delays that had occurred.

The Judge dealt with the matter and he made orders adverse to the present applicant.  That is, he refused leave to proceed and he ordered that the action be struck out.  He reviewed the circumstances of the case at considerable length and the views he formed appear in his reasons. 

We would not extend time to appeal unless we considered that it was a case where leave to appeal should be given.  There is not an automatic right to appeal even if the case were within time, and we then note as well, as I have indicated, that the present appeal would be one brought against the exercise of discretion.

The delays that have occurred have been against a particular background, not all aspects of which need be set out.  The applicant's then solicitors, it appeared, warned the present applicant about the risk of the matter being dismissed for delays.  On one occasion already it was necessary for the applicant to obtain leave to proceed because the last preceding step had been more than three years earlier.

The Judge who on that occasion heard the matter - that was in 1994 - did give leave to proceed, but warned the applicant of the serious risks to her litigation if there were further delays.  Notwithstanding that there were then further delays of more than three years, so that in July '97 the applicant was faced with the necessity of obtaining leave to proceed once again if she were to keep her action alive, and had to confront the respondent's application to strike out the action in those circumstances.

The Judge below has fully set out the circumstances which weighed with him.  It does not seem to me that he has taken any obviously wrong view of those circumstances and their relevance for the purposes that concerned him.  It is true that some of the delay has been caused by the applicant's own lack of funds which the Judge below noticed, but having attended to the matters urged upon us by counsel for the applicant, it does not seem to me to be a case where the relief now being sought should be granted.

The passage of the years has introduced certain obstacles to the easy resolution of the case.  Two witnesses whom the present respondent/defendant might have had available at an earlier time are now deceased.  That is a nurse employed by the store who had had certain conversations with the applicant and an architect who had reviewed the state of the premises and provided a report.  Both are dead.

The decision made below in the exercise of the Judge's discretion is one which does not seem to me to be obviously incorrect.  There has been an inordinately long delay and there remains some requirement to ensure that proceedings in the Court for the benefit of all litigants are kept on track, at least to a degree even allowing for every necessary indulgence in favour of a plaintiff.

It does not seem to me that any injustice in the circumstances has been done bearing in mind the situation of the parties on each side of the record.  I would accordingly refuse the application to extend time and refuse leave.

PINCUS JA:  I agree.

THE CHIEF JUSTICE:  And I should have added - and refused the application sought to extend time for necessary purposes. 
Mr Justice Helman wishes to add some observations in case, I think, one of the circumstances I stated was not stated exactly correctly.

HELMAN J:  As I understand this matter the notice of appeal was lodged within the prescribed time limit, but leave to appeal was not obtained before it was lodged and is now necessary.  I agree with the Chief Justice for the reasons that he has given that leave to appeal should be refused.  I agree with the orders that the Chief Justice proposes.

THE CHIEF JUSTICE:  I think the substance of what we intend is clear enough.  Mr Freeburn, is there any aspect on which you think we did not make a necessary order?

MR FREEBURN:  No.

THE CHIEF JUSTICE:  It got a little confused between extensions of time and leave.

MR FREEBURN:  No.

THE CHIEF JUSTICE:  Yes, Mr Trotter.

MR TROTTER:  Excuse me, Your Honour.  Could I just have a brief word with my -----

THE CHIEF JUSTICE:  Yes.  Yes, Mr Freeburn?

MR FREEBURN:  Your Honour, I'd ask for costs of both applications.  That is my learned friend's application for leave and for an extension and also my application which was filed first on 6 November to strike out their appeal as being incompetent because leave had not been obtained.

THE CHIEF JUSTICE:  Well I suppose, Mr Trotter, they were both necessary machinery steps to get the matter before the Court and have its status determined.

MR TROTTER:  Yes, that's so.

THE CHIEF JUSTICE:  Yes, all right.  Well the respondent to the plaintiff applicant's motion should have the costs of both applications to this Court.

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