Koziol v Gergel - [1999] TASSC 12

[1999] TASSC 12

PARTIES:  KOZIOL, Nadejda
  v
  GERGEL, Alexander

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  829/1990
DELIVERED:  19 February 1999
HEARING DATE/S:  12 February 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Time - Leave to take fresh proceeding in the action - Delay exceeding six years since last proceeding taken - Factors relevant in the exercise of discretion to grant leave.
Aust Dig Procedure [283]

Rules of the Supreme Court, O79, r11(2), O30, r1.
The Closer Settlement Board v Thomas [1982] Tas SR 179; Appleby & Anor v Mobil Oil Australia Ltd 120/1997, applied.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; Wintle v Nye [1959] 1 All ER 552; Wilson v Bynon [1984] 2 Qd R 83; Dempsey v Dorber [1990] 1 Qd R 418, considered.

REPRESENTATION:

Counsel:
             Plaintiff:  A M Blow QC
             Defendant:  N R Readett
Solicitors:
             Plaintiff:  Wallace Wilkinson & Webster
             Defendant:  Clerk Walker & Stops

Judgment category classification:
Judgment ID Number: [1999] TASSC 12
Number of pages: 3

Serial No 12/1999
File No 829/1990

NADEJDA KOZIOL v ALEXANDER GERGEL

REASONS FOR JUDGMENT WRIGHT J

19 February 1999

Maria Schew, as executrix of the estate of Nadejda Koziol deceased, has applied for a number of interlocutory orders, including orders that she be substituted as plaintiff and that she then be at liberty to take fresh proceedings in the action, notwithstanding the passage of more than six years since the last proceeding was taken.
The Rules of the Supreme Court, O79, r11(2) provide:
"(2) When six years have elapsed from the time the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a judge, which may be made either ex parte or upon notice."
Similar provisions exist in the High Court Rules and the Rules of the Supreme Court (Qld) (see Appleby & Anor v Mobil Oil Australia Ltd 120/1997 per Underwood J at 1).
In Appleby (supra) Underwood J said:
"The question of whether there is good reason for making the order will, of course, depend upon the circumstances of each case, but generally speaking, relevant factors will be whether there is a reasonable excuse for the delay (Campbell v United Pacific Transport Pty Ltd and Others [1966] Qd R 465) and whether the respondent will suffer prejudice if the order is made."
And at 2, his Honour added:
"A relevant matter may be the nature of the applicant's case. An order will be an exercise in futility if it appears that the applicant will not be successful in the litigation even if an order giving leave to proceed is made. All the relevant circumstances have to be balanced to see whether there is good reason for excepting the proceedings from the general prohibition against taking proceedings after the expiration of…

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.

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Details

Case: [1999] TASSC 12
Decision Date: 19 February 1999

CaseChat Overview and Summary

In the matter of Koziol v Gergel, the Supreme Court of Tasmania was tasked with determining whether Maria Schew, as executrix of the estate of Nadejda Koziol, should be granted leave to substitute herself as plaintiff and to proceed with fresh proceedings in the action, more than six years after the last proceeding was taken. The primary legal issue was whether the delay in taking the proceedings was justified and whether the defendant, Alexander Gergel, would suffer prejudice if the order was made. The court had to balance the factors relevant to granting such leave, including whether there was a reasonable excuse for the delay and whether the defendant would be prejudiced by the delay.

The court, in its reasoning, referred to the principles outlined in The Closer Settlement Board v Thomas and Appleby v Mobil Oil Australia Ltd, which emphasized that the decision to grant leave to proceed after a six-year delay depends on the specific circumstances of each case. The court considered factors such as the reasonableness of the excuse for the delay, the nature of the applicant's case, and whether the defendant would suffer prejudice. In this case, the court found that the plaintiff had a reasonably good prospect of success and that the defendant had not shown specific prejudice resulting from the delay. The court also noted that the defendant had been aware of the claim since the service of the writ and statement of claim, and that any general prejudice was substantially mitigated by the fact that the defendant was involved in the creation of the disputed will.

Consequently, the court concluded that the interests of justice were served by allowing the action to proceed. The orders made by the court included substituting Maria Schew as the plaintiff, permitting her to take fresh proceedings, allowing an amendment to the statement of claim, issuing a citation, and directing the plaintiff to pay the costs of the application and the amendment to the statement of claim.

Orders