SUPREME COURT OF QUEENSLAND
CITATION:
Kuperman v Permanent Trustee Australia Limited [2023] QCA 54
PARTIES:
GAYE ALEXANDRA KUPERMAN
(appellant)
v
PERMANENT TRUSTEE AUSTRALIA LIMITED
ACN 008 412 913
(respondent)FILE NO/S:
Appeal No 13003 of 2022
DC No 595 of 1998DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane – Unreported, 26 September 2022 (Burnett DCJ)
DELIVERED ON:
28 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
16 March 2023
JUDGES:
Mullins P and Dalton JA and Bradley J
ORDER:
Appeal dismissed with costs.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – GENERALLY – where the appellant filed a plaint against the respondent for personal injury in 1998 – where the last step in the proceeding was taken in 2002 – where the appellant filed an application for leave to proceed after a delay of over 19 years – where the respondent filed a cross-application to dismiss the proceeding for want of prosecution – where the appellant justified the delay by reference to her circumstances of disability, impecuniosity and homelessness – where the appellant had litigated at least 44 separate matters since the last step was taken – where medical practitioners who had provided the initial reports as to the appellant’s injuries could no longer be located – where the respondent’s former solicitors could no longer locate the original file – where the primary judge found that the proceeding was characterised by delay – where the primary judge found that the appellant had not provided a satisfactory explanation for the delay – where the primary judge found that the respondent would suffer prejudice – where the primary judge dismissed the application for leave to proceed and dismissed the proceeding for want of prosecution – where the appellant contends that the primary judge’s discretion miscarried – whether the primary judge’s decision should be set aside – whether the appellant should be granted leave to proceed
Civil Proceedings Act 2011 (Qld), s 22(2)
District Court Rules 1968 (Qld), r 149A, r 182
Uniform Civil Procedure Rules 1999 (Qld), r 5(3), r 214, r 280, r 389, r 547, r 548, r 550Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202;[2012] QCA 272, applied
Cooper v Hopgood & Ganim [1999] 2 Qd R 113; [1998] QCA 114, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Keioskie v Workers’ Compensation Board of Queensland[1992] QCA 304, cited
Tyler v Custom Credit Corp Ltd & Ors[2000] QCA 178, cited
William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; [1963] HCA 6, citedCOUNSEL:
The appellant appeared on her own behalf
A I O’Brien for the respondentSOLICITORS:
The appellant appeared on her own behalf
Mills Oakley for…
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- Case
- [2023] QCA 54
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge’s discretion miscarried and whether the appellant should be granted leave to proceed. The court considered the primary judge’s reasons and found that there were no errors of the kind raised by the appellant. The court found that the primary judge’s conclusions were consistent with the evidence. The court found that the primary judge’s reasons included logical explanations for rejecting the appellant’s submissions and finding otherwise. The court found that the decision was not unreasonable or plainly unjust. The court found that it was not possible to say that the primary judge’s discretion miscarried in dismissing the appellant’s application for leave to proceed and dismissing the proceeding for want of prosecution.
The court dismissed the appeal with costs. The court found that the primary judge’s conclusions in the three important respects noted above were consistent with the evidence. The court found that the primary judge’s reasons included, with respect, logical explanations for rejecting the appellant’s submissions and finding otherwise. The court found that the decision was not unreasonable or plainly unjust. The court found that it was not possible to say that the primary judge’s discretion miscarried in dismissing the appellant’s application for leave to proceed and dismissing the proceeding for want of prosecution. The court found that the appellant had not shown that the primary judge’s discretion was wrongly exercised in any respect. The court ordered that the appellant, as the wholly unsuccessful party, pay the respondent’s costs of the application. The court found that the appeal should be dismissed with costs.
The final orders of the court were that the appeal should be dismissed with costs. The appellant was ordered to pay the respondent’s costs of the application. The court found that the primary judge’s conclusions in the three important respects noted above were consistent with the evidence. The court found that the primary judge’s reasons included, with respect, logical explanations for rejecting the appellant’s submissions and finding otherwise. The court found that the decision was not unreasonable or plainly unjust. The court found that it was not possible to say that the primary judge’s discretion miscarried in dismissing the appellant’s application for leave to proceed and dismissing the proceeding for want of prosecution. The court found that the appellant had not shown that the primary judge’s discretion was wrongly exercised in any respect. The court found that the appeal should be dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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