Kingsley v Williams - [2000] QCA 14

[MISTEARL PTY LTD v WILLIAMS]

[2000] QCA 14

COURT OF APPEAL

McMURDO P

Appeal No 9836 of 1999

MISTEARL PTY LTD
ACN 061 805 972 Appellant (Applicant)

and

NICOLE WILLIAMS First Respondent (First Respondent)

and

FAI INSURANCE
COMPANY LIMITED Second Respondent (Second Respondent)

Appeal No 1859 of 2000

NICOLE WILLIAMS First Applicant (First Defendant)

and

JENNIFER KINGSLEY Respondent (Plaintiff)

and

MISTEARL PTY LTD Respondent (Third Party)

and

FAI GENERAL INSURANCE COMPANY LTD
Second Applicant (Second Defendant)

Appeal No 1934 of 2000

NICOLE WILLIAMS First Applicant (First Defendant)

and

JENNIFER KINGSLEY Respondent (Plaintiff)

and

MISTEARL PTY LTD Respondent (Third Defendant)

and

FAI GENERAL INSURANCE COMPANY LTD
Second Applicant (Second Defendant)

BRISBANE

..DATE 07/03/2000

JUDGMENT

THE PRESIDENT: The applicants/defendants applied to this Court for a stay of proceedings between them and the respondent/plaintiff pending in the Maroochydore District Court, until the determination of their application to the High Court of Australia for a grant of special leave to appeal the judgment of this Court given on 8 February 2000 and amended on 29 February 2000, and if special leave is granted a further stay until the disposal of the appeal or further order.

The respondent's action against the applicants arose out of a motor vehicle accident in the course of her employment when she was struck by the first applicant who was reversing her motor vehicle. The second applicant was the licensed insurer of the motor vehicle. The respondent sued the applicants for damages for personal injuries arising from the incident. On 7 June 1999 the second applicant issued a third party notice claiming indemnity or contribution from the respondent's employer, relying upon section 6(c) of the Law Reform Act 1995.

The learned primary Judge found that because of the provisions of WorkCover Queensland Act 1996, section 6(c) of the Law Reform Act 1995 did not apply as the third party employer was not a tortfeasor "who is, or would if sued have been, liable" for damage suffered by the respondent.

The applicants unsuccessfully appealed to this Court for the reasons given in Bonser v. Melnacis and Anor, [2000] QCA 13, Appeal No 4369 of 1999, 8 February 2000, a matter heard contemporaneously with this appeal. As I have mentioned, the applicants now seek leave to appeal to the High Court. In Bonser, the Court expressed reservations ([44]-[46] of the reasons) about the conclusion in strong terms. Those expressed reservations may well be a significant factor in favour of the granting of special leave and demonstrate that prima facie the applicants have a clearly arguable case on appeal.

I am told that the special leave application and the hearing of any appeal may take up to 12 to 18 months by which time the respondent's action will be completed if it is not stayed. It is anticipated the action will be completed within three to six months. The applicants would then lose the opportunity to join the third party in this action and would need to commence a separate action against…

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 Kingsley v Williams

Details

AGLC: Kingsley v Williams [2000] QCA 14
Case: [2000] QCA 14
Decision Date: 07/03/2000

CaseChat Overview and Summary

In the Court of Appeal, Mistearl Pty Ltd and Nicole Williams, along with FAI Insurance Company Limited, sought to stay proceedings in the Maroochydore District Court against Jennifer Kingsley, who was injured in a motor vehicle accident caused by Nicole Williams while she was reversing her vehicle. The dispute arose from an action by Kingsley against the applicants for damages, and a third party notice issued by FAI Insurance Company Limited claiming indemnity or contribution from Kingsley's employer under section 6(c) of the Law Reform Act 1995. The applicants' appeal against the primary judge's decision that the WorkCover Queensland Act 1996 precluded application of section 6(c) was dismissed by the Court of Appeal. The applicants now sought leave to appeal to the High Court and, if granted, a stay of proceedings until the appeal is resolved.

The legal issues before the Court of Appeal included whether the Court had jurisdiction to stay proceedings and whether there were extraordinary circumstances warranting a stay. The Court considered whether the appeal raised an arguable question, the potential consequences of denying the stay, and the balance of convenience. The Court recognised the inherent jurisdiction to stay proceedings but noted that such a stay is not usually granted unless extraordinary circumstances exist. The applicants argued that the appeal would be rendered nugatory without a stay, but the Court found that while the applicants would be disadvantaged if successful, the appeal would not be rendered nugatory. The Court also noted the significant consequences to the respondent if the proceedings were stayed.

The Court of Appeal held that the applicants had not established extraordinary circumstances warranting a stay. The Court found that the question raised was clearly arguable, but this alone was not sufficient to warrant a stay. The Court emphasised the importance of the balance of convenience, noting that the respondent's action was likely to be completed within three to six months, and a stay would deny her the opportunity to prosecute her action for damages for her injuries, which included back injuries, grazing, a haematoma, a fractured left upper lumbar pars grade 1, shock, and psychological injury. The applicants' argument that the appeal would be rendered nugatory was rejected, as the appeal would still have wide application if successful. The Court concluded that the applicants had failed to establish circumstances warranting the granting of the stay and dismissed the application. The Court ordered the applicants to pay the respondent's costs of the application to be assessed.

Orders