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Hoy v Honan

Hoy v Honan

Case [1997] QCA 250 19 August 1997

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IN THE COURT OF APPEAL	[1997] QCA 250
SUPREME COURT OF QUEENSLAND

Appeal No. 4058 of 1996

Brisbane

[Hoy & McCormack v Honan & Anor]

BETWEEN:

KENNETH NIGEL HOY and KIEREN JOHN McCORMACK

(Second Defendants) Appellants

AND:

ROBERT EMMETT HONAN and BARBARA JEAN HONAN

(Plaintiffs) Respondents

Fitzgerald P Derrington J Byrne J

Judgment delivered 19 August 1997

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	LIMITATION OF ACTIONS - Extension of time - Appeal against an order under O.90 r.9 of the Rules of the Supreme Court granting leave to proceed - Delay satisfactorily explained - Prejudice resulting from delay substantially due to appellants’ own failure to obtain and preserve evidence - Whether prejudice flowing from the delay to be considered in relation to the total passage of time or since the last step in the action.
Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866 Bishopsgate Insurance Australia Ltd v. Deloitte, Haskins Sells, Unreported, Vic. Court of Appeal, 9 September 1994 Cowie v. State Electricity Commission of Victoria [1964] VR 788.
Counsel:	Mr S.L. Doyle SC, with him Mr A. Henley for the appellants Mr M. White QC, with him Mr J.A. Duncan for the respondents
Solicitors:	Corrs Chambers Westgarth for the appellants Michell Sillar Nicholsons for the respondents
Hearing Date:	12 March 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4058 of 1996

Brisbane

Before

Fitzgerald P. Derrington J. Byrne J.

[Hoy & McCormack v. Honan & anor.]

BETWEEN:

KENNETH NIGEL HOY and KIEREN
JOHN McCORMACK

(Second Defendants) Appellants

AND:

ROBERT EMMETT HONAN and
BARBARA JEAN HONAN

(Plaintiffs) Respondents

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19 August 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of Derrington J.

The appeal is brought from the exercise of a discretion by the Chamber Judge which involved balancing

a variety of competing considerations. The appellants would have no prospect of success but for two

matters. One is the prejudice which they attribute to their lack of knowledge of the whereabouts of a

person who would be a material witness, Mr Mauriasi, and the poor recollection of another potential witness, Mr Waleilia, who has destroyed his files. The second matter is that the Chamber Judge

considered the delay which has occurred by reference to the period since the last step in the action,

whereas he should have considered the total passage of time since the cause of action arose or, at the

latest, since the respondents became aware of their loss.

While is it accordingly necessary for this Court to reconsider how the discretion should be exercised,

it is appropriate to note that the single error made by the Chamber Judge was of limited significance.

I consider it unnecessary to repeat the circumstances in detail. The delay was largely…

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 Hoy v Honan

Details

AGLC: Hoy v Honan [1997] QCA 250
Case: [1997] QCA 250
Decision Date: 19/08/1997

CaseChat Overview and Summary

The appeal concerns a dispute between Hoy and Honan, where the issue at hand was the granting of leave to proceed with an action past the statutory limitation period, as per O.90 r.9 of the Rules of the Supreme Court. The lower court had to decide whether the applicants' explanation for the delay was satisfactory, and if the prejudice resulting from the delay was attributable to the applicants themselves. The applicants sought to appeal the decision, focusing on whether the prejudice should be assessed from the total passage of time or since the last step in the action.

The central legal questions involved the interpretation of delay in legal proceedings and the satisfactory explanation required to extend the limitation period. It was also crucial to determine if the prejudice resulting from the delay was substantially due to the applicants' own failure to obtain and preserve evidence. The court had to assess whether the delay was justifiable and if the applicants had acted diligently in their efforts to mitigate the consequences of the delay.

The court found that the applicants had satisfactorily explained their delay and that the prejudice resulting from the delay was substantially due to the applicants' own failure to obtain and preserve evidence. The court concluded that the prejudice flowing from the delay should be considered in relation to the total passage of time rather than since the last step in the action. The appeal was dismissed, affirming the lower court's decision to grant leave to proceed with the action.

The final orders of the court upheld the decision of the lower court, dismissing the appeal. The applicants were granted leave to proceed with their action beyond the statutory limitation period, recognising the satisfactory explanation for the delay and the attributable prejudice. The reasoning emphasised the importance of the applicants' diligence in mitigating the consequences of the delay and the overall assessment of prejudice in the context of the total passage of time.

Orders