Jiminez v Jayform Contracting Pty Ltd - [1992] QCA 59

IN THE COURT OF APPEAL	[1992] QCA 059
SUPREME COURT OF QUEENSLAND	C.A. No. 87 of 1991
BETWEEN:

LUIS JIMINEZ

(Plaintiff) Appellant

AND:

JAYFORM CONTRACTING PTY LIMITED

(Defendant) Respondent

JUDGMENT - DAVIES AND McPHERSON JJ.A.

This is an application for leave to appeal against a decision of a District Court judge given in chambers on 25 September 1991. Mr Jiminez, whom we will call throughout "the applicant", is the plaintiff in a District Court plaint in which he claims $200,000 damages for personal injury caused by the negligence or breach of statutory duty of the defendant who, it is alleged, was his employer. It does not seem to be in dispute that the applicant suffered severe injuries on 11 May 1988.

The decision of the District Court judge was one in which he refused an application that the name of Jayform Contracting Pty Limited be struck out as defendant, that Jayform Pty Ltd be joined as defendant in lieu of Jayform Contracting Pty. Limited, that the joinder of Jayform Pty Ltd take effect as and from 7 May 1991, and that the name of the defendant on the plaint be amended to Jayform Pty Ltd. The application was made pursuant to r.23 of the District Courts Rules, 1968 which is in the same terms as O.3 r.11 of the Rules of the Supreme Court.

Leave of this Court is necessary to appeal because the order made was not a final judgment; and such leave is not to be granted unless some important question of law or justice is involved: s. 92(2) of the The District Courts Act of 1967.

Order 70 r. 34 of the Rules of the Supreme Court provides:-

"34. A party appealing, either by leave or as of right from a judgment of a District Court shall institute an appeal in accordance with Order 70 rule 2 within the time prescribed in rule 334 of the District Court Rules."

The decision of the Full Court of this Court in Johns v. Johns (1988) 1 Qd.R. 138 establishes, correctly in our view, that O. 70 r. 34, on its proper construction, requires that leave be obtained before the appeal is instituted in accordance with O. 70 r. 2. The applicant seeks that leave which we would grant because, in our view, there is an important question of justice involved here. For reasons which we will develop later, the applicant could have made an application to the District Court Judge under O. 32 r. 1(3) of the Rules of the Supreme Court because that rule is applied by r. 4 of the District Courts Rules, 1968; and if he had done so the District Court Judge ought to have granted it.

If the applicant is unable to amend his plaint in the way in which he seeks to do so, his cause of action against his employer in respect of his serious injuries and disabilities will be lost. At best for him, if leave is not granted, he will…

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 Jiminez v Jayform Contracting Pty Ltd

Details

AGLC: Jiminez v Jayform Contracting Pty Ltd [1992] QCA 59
Case: [1992] QCA 59
Decision Date: 10/04/1992

CaseChat Overview and Summary

This case involved an appeal by Luis Jiminez against Jayform Contracting Pty Limited concerning a claim for damages due to personal injury. Jiminez, the plaintiff, sought to amend the defendant's name in his District Court action from Jayform Contracting Pty Limited to Jayform Pty Ltd, arguing that the amendment was necessary to correct an error. The District Court had denied this amendment application, which led Jiminez to appeal to the Supreme Court of Queensland for leave to appeal the District Court's decision. The primary legal issues revolved around whether the Supreme Court should grant leave to appeal a non-final judgment and whether the District Court Rules adequately allowed for such amendments.

The Court of Appeal held that leave to appeal was warranted because the District Court's refusal to amend the defendant's name could result in Jiminez losing his cause of action, which would be unjust. The Court also determined that the Supreme Court had the authority to extend the time for filing a notice of appeal, contrary to previous rulings. Furthermore, the Court found that Order 32 of the Supreme Court Rules, which allows for the amendment of the name of a party to correct genuine mistakes, applied to the District Court through the District Courts Rules. The Court concluded that Jiminez's mistake in naming the defendant was genuine, and thus the appeal should be allowed. The Court ordered that Jayform Pty Ltd be substituted for Jayform Contracting Pty Ltd as the defendant, effective from May 7, 1991, and set aside the District Court's refusal to amend the defendant's name. Jiminez was also ordered to pay the respondent's costs of the appeal and the proceedings below.

Orders