King v Comiskey Management Services Pty Ltd

Case [2020] QCA 229

SUPREME COURT OF QUEENSLAND

CITATION:

King v Comiskey Management Services Pty Ltd & Anor [2020] QCA 229

PARTIES:

MITCHELL PAUL KING
(applicant)
v
COMISKEY MANAGEMENT SERVICES PTY LTD
ACN 115 254 307
(first respondent)
SCANTEK SOLUTIONS PTY LTD
ACN 158 339 514
(second respondent)

FILE NO/S:

Appeal No 6060 of 2020
SC No 14016 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 15 April 2020 (Dalton J)

DELIVERED ON:

23 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2020

JUDGES:

Fraser and McMurdo JJA and Jackson J

ORDER:

The application for an extension of time within which to appeal is refused, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant commenced a claim for defamation against the respondents in the Trial Division after the limitation period of one year from the date of the publication had expired – where the applicant’s application in the Trial Division for an extension of the limitation period was refused – where the applicant seeks to appeal that decision – where the applicant’s appeal was commenced out of time – whether an extension of time within which to appeal should be granted

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the respondents relied upon their submissions that the appeal lacks merit as a matter that may be taken into account in deciding whether to grant an extension of time within which to appeal – where, for 10 of the alleged publications, the maximum allowable extension to three years from the date of the publication would not result in the claim being within time – where two of the alleged publications were found by the primary judge to be incapable of being regarded as defamatory – where the primary judge refused to grant an extension for the remaining two publications because the applicant failed to commence his claim for 18 months after he knew all the facts relating to the alleged publications, was aware of his rights in relation to defamation and was aware of the limitation period – where the applicant appeals against the refusal of an extension in relation to the latter two alleged publications only – whether the proposed appeal lacks merit and is bound to fail

Limitation of Actions Act 1974 (Qld), s 10AA, s 32A(2)
Uniform Civil Procedure Rules 1999 (Qld), r 189, r 668

Barrett v TCN Channel Nine Pty Ltd (2017) 96 NSWLR 478; [2017] NSWCA 304, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Noonan v MacLennan [2010] 2 Qd R 537; [2010] QCA 50, cited
Pingel v Toowoomba Newspapers Pty Ltd[2010] QCA 175, cited

COUNSEL:

No appearance for the applicant
S D McCarthy for the first respondent
K M Riedel for the…

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King v Comiskey Management Services Pty Ltd [2020] QCA 229
Case
[2020] QCA 229
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CaseChat Overview and Summary

The case of King v Comiskey Management Services Pty Ltd involved a defamation claim that was initiated after the statutory limitation period had expired. The applicant, King, sought an extension of time to appeal the Trial Division's decision that had refused such an extension. The respondents argued that the appeal lacked merit, which they proposed should be considered when deciding whether to grant an extension of time. The primary judge had refused an extension for two of the alleged publications, as the applicant had not commenced his claim within a reasonable time after being aware of all relevant facts and his rights.

The primary legal issue before the court was whether an extension of time should be granted for the applicant to appeal the refusal of an extension of the limitation period. This involved considering the merits of the proposed appeal, the length of time the applicant had delayed in initiating proceedings, and the application of relevant statutory provisions concerning extensions of time. The court had to weigh these factors against the established principles of legal procedure and the discretion available to it in granting extensions of time for appeals.

The court determined that the proposed appeal lacked merit and was bound to fail. It noted that the maximum allowable extension would not bring the claim within time for 10 of the alleged publications, and two were not considered defamatory. The court also found that the applicant had delayed for 18 months after knowing all relevant facts and his rights. Consequently, the application for an extension of time within which to appeal was refused, with costs awarded against the applicant.

The final orders of the court were clear: the application for an extension of time within which to appeal was refused, with the applicant to bear the costs of the proceedings. This decision underscored the importance of timely legal action and the court's limited discretion in granting extensions of time in cases where substantial delays have occurred and the appeal appears to lack merit.

Orders

Orders of the court

The application for an extension of time within which to appeal is refused, with costs.

Background

Background to the litigation

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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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