Hare v Mt Isa Mines Ltd - [2009] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

Hare v Mt Isa Mines Ltd & Ors [2009] QCA 91

PARTIES:

STELLA YVONNE HARE by her litigation guardian
DAPHNE YVONNE HARE
(applicant/respondent)
v
MOUNT ISA MINES LIMITED
ACN 009 661 447
(first respondent/first applicant/appellant)
XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939)
(second respondent/second applicant/appellant)
XSTRATA QUEENSLAND LIMITED
ACN 009 814 019
(third respondent/third applicant/appellant)

FILE NO/S:

Appeal No 10289 of 2008
DC No 1722 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Application for Leave s 118 DCA (Civil)
Application for Stay of Execution

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2009

JUDGES:

Holmes and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal granted;

2.   Appeal allowed;

3.   Declaration and costs order made at first instance set aside;

4.   Application for stay dismissed;

5.   Respondent pay appellants’ costs of the application at first instance and of the application and appeal in this Court.

Ex tempore orders of McMurdo P:

6.   Vacate order 5;

7.   Parties to make written submissions as to costs as per Practice Direction 2 of 2004.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where trial judge made a declaration that respondent’s notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) was a complying part 1 notice of claim – whether trial judge’s reasons adequate – whether notice compliant – whether declaration wrongly made – whether respondent remedied non-compliance – whether Court should authorise respondent to proceed with claim despite non-compliance

Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 12(2), s 13, s 18, s 22, s 27, s 36, s 59
Personal Injuries Proceedings Regulation 2002 (Qld), s 3(3)(b), s 3(3)(h), s 3(6)(d)

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited
Drew v Makita (Australia) P/L [2009] QCA 66, cited
Flannery v Halifax Estate Agencies [2000] 1 WLR 377; [1999] EWCA Civ 811, cited

COUNSEL:

L F Kelly SC, with B F Charrington, for the applicants/appellants
G R Mullins for the respondent

SOLICITORS:

Allens Arthur Robinson for the applicants/appellants
Slater & Gordon Lawyers for the respondent

:HOLMES JA The respondent obtained a declaration at first instance that a notice of claim served on the appellants pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (“PIPA”) was a complying part 1 notice of claim under PIPA. The appellants apply for leave to appeal against the making of that declaration and a stay of its effect. In the course of the applications, the merits of the substantive appeal were also argued and it was agreed that if leave to appeal were granted, the appeal itself should…

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 Hare v Mt Isa Mines Ltd

Details

AGLC: Hare v Mt Isa Mines Ltd [2009] QCA 91
Case: [2009] QCA 91
Decision Date: 17 April 2009

CaseChat Overview and Summary

The appeal before the Court was brought by Hare against Mt Isa Mines Ltd. The dispute centred on whether the respondent's notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) was compliant, and if not, whether the trial judge correctly set aside the declaration that it was. The Court of Appeal was tasked with determining the adequacy of the trial judge's reasons, the compliance of the notice, and whether the declaration was wrongly made. Additionally, the Court needed to consider if the respondent had remedied the non-compliance and if the Court should allow the respondent to proceed with the claim despite the non-compliance.

The Court of Appeal found that the trial judge's reasons were inadequate as they did not address the key issues of whether the notice was compliant and whether the declaration was correctly made. The Court held that the notice was not compliant as it did not specify the particulars required by the Act. Furthermore, the Court concluded that the declaration was wrongly made because the trial judge failed to properly assess the compliance of the notice. The Court also noted that the respondent had not remedied the non-compliance within the time allowed by the Act. Therefore, the Court set aside the declaration and costs order made at first instance.

The appeal was allowed, and the declaration and costs order made at first instance were set aside. The application for a stay was dismissed, and the respondent was ordered to pay the appellants' costs of the application at first instance and of the application and appeal in this Court. Additionally, ex tempore orders by McMurdo P vacated an earlier order and directed the parties to make written submissions as to costs in accordance with the relevant practice direction.

Orders

Orders of the court

1. Application for leave to appeal granted;

2. Appeal allowed;

3. Declaration and costs order made at first instance set aside;

4. Application for stay dismissed;

5. Respondent pay appellants’ costs of the application at first instance and of the application and appeal in this Court.

Ex tempore orders of McMurdo P:

6. Vacate order 5;

7. Parties to make written submissions as to costs as per Practice Direction 2 of 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hare v Mt Isa Mines Ltd & Ors [2009] QCA 91
PARTIES:	STELLA YVONNE HARE by her litigation guardian DAPHNE YVONNE HARE (applicant/respondent) v MOUNT ISA MINES LIMITED ACN 009 661 447 (first respondent/first applicant/appellant) XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939) (second respondent/second applicant/appellant) XSTRATA QUEENSLAND LIMITED ACN 009 814 019 (third respondent/third applicant/appellant)
FILE NO/S:	Appeal No 10289 of 2008 DC No 1722 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Application for Leave s 118 DCA (Civil) Application for Stay of Execution
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2009
JUDGES:	Holmes and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal granted; 2. Appeal allowed; 3. Declaration and costs order made at first instance set aside; 4. Application for stay dismissed; 5. Respondent pay appellants’ costs of the application at first instance and of the application and appeal in this Court. Ex tempore orders of McMurdo P: 6. Vacate order 5; 7. Parties to make written submissions as to costs as per Practice Direction 2 of 2004.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where trial judge made a declaration that respondent’s notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) was a complying part 1 notice of claim – whether trial judge’s reasons adequate – whether notice compliant – whether declaration wrongly made – whether respondent remedied non-compliance – whether Court should authorise respondent to proceed with claim despite non-compliance Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 12(2), s 13, s 18, s 22, s 27, s 36, s 59 Personal Injuries Proceedings Regulation 2002 (Qld), s 3(3)(b), s 3(3)(h), s 3(6)(d) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited Drew v Makita (Australia) P/L [2009] QCA 66, cited Flannery v Halifax Estate Agencies [2000] 1 WLR 377; [1999] EWCA Civ 811, cited
COUNSEL:	L F Kelly SC, with B F Charrington, for the applicants/appellants G R Mullins for the respondent
SOLICITORS:	Allens Arthur Robinson for the applicants/appellants Slater & Gordon Lawyers for the respondent