Kuperman v Permanent Trustee Australia Limited - [2023] QCA 54

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 1998

DIVISION:

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 550

Artahs 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, cited

COUNSEL:

The appellant appeared on her own behalf
A I O’Brien for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Mills Oakley for…

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: [2023] QCA 54
Decision Date: 28 March 2023

CaseChat Overview and Summary

In the matter of Kuperman v Permanent Trustee Australia Limited, the appellant, Kuperman, filed a plaint against the respondent for personal injury in 1998. The last step in the proceeding was taken in 2002. In 2021, Kuperman filed an application for leave to proceed after a delay of over 19 years. The respondent filed a cross-application to dismiss the proceeding for want of prosecution. Kuperman justified the delay by reference to her circumstances of disability, impecuniosity, and homelessness. The appellant had litigated at least 44 separate matters since the last step was taken. The medical practitioners who had provided the initial reports as to the appellant’s injuries could no longer be located. The respondent’s former solicitors could no longer locate the original file. The primary judge found that the proceeding was characterised by delay. The primary judge found that the appellant had not provided a satisfactory explanation for the delay. The primary judge found that the respondent would suffer prejudice. The primary judge dismissed the application for leave to proceed and dismissed the proceeding for want of prosecution.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A review of the primary judge’s reasons does not reveal errors of the kind Ms Luck has raised. None of these grounds of appeal has any merit.Conclusion The primary judge’s conclusions in the three important respects noted above were consistent with the evidence. His Honour considered Ms Luck’s submissions and the evidence she adduced on these topics. His Honour’s reasons include, with respect, logical explanations for rejecting Ms Luck’s submissions and finding otherwise. The decision is not unreasonable or plainly unjust.[15] It is not possible to say that the primary judge’s discretion miscarried in dismissing Ms Luck’s application for leave to proceed and dismissing the proceeding for want of prosecution. His Honour ordered that Ms Luck, as the wholly unsuccessful party, pay the respondent’s costs of the application. Ms Luck has not shown his Honour’s discretion was wrongly exercised in any respect.[15]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). The appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 1998
DIVISION:	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 550 Artahs 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, cited
COUNSEL:	The appellant appeared on her own behalf A I O’Brien for the respondent
SOLICITORS:	The appellant appeared on her own behalf Mills Oakley for…