Gibson v Nominal Defendant (Qld) - [1996] QCA 240

IN THE COURT OF APPEAL	[1996] QCA 240
SUPREME COURT OF QUEENSLAND

Appeal No 3290 of 1996

Brisbane
[Gibson v. The Nominal Defendant (Queensland)]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

Williams J
Ambrose J
Byrne J

Judgment delivered 19/07/96

Separate reasons of each member of the court, all concurring as to the orders made.

LEAVE TO APPEAL REFUSED. APPLICATION DISMISSED WITH COSTS.

CATCHWORDS: CIVIL PROCEDURE - APPEALS FROM DISTRICT

COURT.
Personal injury - an error in the exercise of
judicial discretion where relevant principles
are well established is not sufficient to
raise an important question of law or justice
- leave to appeal refused.
Johns v. Johns (1988) 1 Qd. R. 138
American Express International Inc v. Hewitt
(1993) 2 Qd. R. 352.
CIVIL PROCEDURE - LEAVE TO APPEAL AGAINST
ORDER DISMISSING ACTION FOR WANT OF
PROSECUTION AND REFUSING LEAVE TO PROCEED.
Personal injury - on the evidence the chamber
judge was entitled to come to the conclusions
he did.

Counsel:	Mr P Hackett for the appellant Mr K Holyoak for the respondent
Solicitors:	Baker Johnson & Partners for the appellant Biggs and Biggs for the respondent

Hearing Date: 8 July 1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 3290 of 1996

Brisbane

Before

Williams J
Ambrose J
Byrne J

[Gibson v. The Nominal Defendant (Queensland)]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 19th day of July 1996

This is an application for leave to appeal against orders made by a District Court judge sitting in Chambers on 22 March 1996. There were then two summonses before him for determination. The first in time was brought by the respondent, The Nominal Defendant (Queensland), seeking an order that the applicant's action claiming damages for personal injuries be dismissed for want of prosecution. The other was brought by the applicant, Paul Joseph Gibson, the plaintiff in the action, seeking an order that he be granted leave to proceed in the action notwithstanding that more than three years had elapsed since the taking of his last step in the proceeding. The learned judge of District Courts refused leave to proceed and dismissed the action for want of prosecution.

A notice of appeal was filed on 18 April 1996, within the time prescribed for so doing where there was a right of appeal. It was then accepted by the applicant that leave was required and the notice of motion seeking leave to appeal to the Court of Appeal was dated 20 June 1996. The application seeking leave to appeal was thus not filed within time, but counsel for the applicant contended that if grounds for granting leave to appeal were established the necessary extension of time should be granted. Counsel for the respondent pointed out that no material relating to such an extension of time was before the court and submitted that the applicant failed at that threshold…

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 Gibson v Nominal Defendant (Qld)

Details

AGLC: Gibson v Nominal Defendant (Qld) [1996] QCA 240
Case: [1996] QCA 240
Decision Date: 19/07/1996

CaseChat Overview and Summary

This case involved an appeal by Paul Joseph Gibson against the orders made by a District Court judge dismissing his personal injury action for want of prosecution and refusing him leave to proceed in the action. The District Court judge had concluded that the applicant's delay in pursuing the action was intentional and contumelious and that the applicant had failed to demonstrate good reason for excepting this proceeding from the general prohibition on taking a fresh step in the proceeding more than three years after the last step was taken. The applicant contended that the District Court judge erred in law in finding intentional and contumelious delay, in failing to give sufficient weight to the applicant's medical condition and alcoholism, and in finding that the delay prejudiced the respondent. The Court of Appeal found that the applicant had not demonstrated an important question of law or justice involved in the case. The Court held that the District Court judge was entitled to come to the conclusions he did based on the well-established principles governing applications to proceed in personal injury actions after a three-year delay and applications to strike out for want of prosecution. The Court of Appeal refused leave to appeal and dismissed the application with costs.

Orders