Lewis v. Hillhouse - [2004] QSC 311

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2004] QSC 311

FRYBERG J

No 2144 of 2004

TERENCE MURRAY LEWIS

Plaintiff

and

IAN BRUCE HILLHOUSE

and

DAVID ALAN BURROUGH

and

ESTATE OF RICK GLYNN WHITTON (DECEASED)

First Defendant

Second Defendant

Third Defendant

BRISBANE

..DATE 17/09/2004

ORDER

HIS HONOUR: The defendant filed an application on 14 September, returnable today 17 September, seeking to strike out the statement of claim pursuant to Rule 171. The application was served 26 minutes inside the time allowed for service under the Rules, that is to say the time prescribed by the Rules was not given but the breach was only 26 minutes. The attempt being made by the applicant was obviously to serve with the minimum amount of time prescribed by the Rules.

The issues raised by the application are complex. They relate to the question whether an action may be brought against solicitors for negligence in the conduct of criminal proceedings when an effect of the proceedings may be to impugn the judgment of another Court.

The statement of claim itself which is the subject of attack was delivered in March this year and has until now remained without any attack and with further pleadings delivered and filed and the parties no doubt have been put to expense since that time.

No explanation for the delay in bringing the attack has been put before me. The plaintiff unsurprisingly has sought an adjournment of the application on the basis that counsel has not had adequate time to prepare proper argument in relation to it. That, having regard to the nature of the issues proposed to be argued, seems to me to be correct. The mere fact of compliance technically with the minimum times prescribed by the Rules does mean that a complex matter like this ought to be served allowing only the minimum time.

In my view, plainly a longer period should have been allowed, preferably by the matter having been brought on much earlier. It is most undesirable that parties should wait for many months allowing costs to build up before bringing a challenge of this fundamental nature. It seems to me that the application for the adjournment should be granted.

...

HIS HONOUR: The defendant's application is adjourned to
4 October.

...

HIS HONOUR: I order the defendant to pay the plaintiff's costs thrown away by the adjournment, to be assessed.

...

HIS HONOUR: This is an application by the plaintiff to strike out paragraph 1 of the amended defence. That paragraph pleads that the plaintiff's action is statute barred by reason of the Limitation of Actions Act. I will not endeavour to describe the pleading in detail because the defence to some extent pre-emptively raises matters which more properly ought to have been raised by the plaintiff in reply and responded to by the defendant by way of rejoinder. But since the parties are not in dispute as to the factual matters raised the sequence of pleading has no impact on the matter.

The…

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 Lewis v. Hillhouse

Details

AGLC: Lewis v Hillhouse [2004] QSC 311
Case: [2004] QSC 311
Decision Date: 17/09/2004

CaseChat Overview and Summary

The Supreme Court of Queensland presided over by Fryberg J heard the case of Lewis v. Hillhouse, No 2144 of 2004, where Terence Murray Lewis, the plaintiff, sought to hold Ian Bruce Hillhouse, David Alan Burrow, and the estate of Rick Glynn Whitton (deceased) accountable for negligence in the conduct of his criminal appeal. The case revolved around the alleged failure of the defendants, who were the plaintiff's solicitors, to properly argue a ground of appeal, which the plaintiff claimed led to the dismissal of his appeal and a 14-year prison sentence. The defendants sought to have the plaintiff's statement of claim struck out on the grounds of late service and the applicability of the Limitation of Actions Act 1974.

The court had to determine whether the plaintiff's action against the defendants was statute-barred due to his status as a prisoner under the Public Trustee Act 1978, which restricted his ability to bring legal actions without the Public Trustee's consent. The defendants argued that the plaintiff ceased to be under a disability when the Public Trustee discontinued management of his estate on 4 October 1993. They contended that this date should mark the beginning of the limitation period under the Limitation of Actions Act.

Fryberg J concluded that the statutory language of "undergoing a sentence of imprisonment" in the Limitation of Actions Act was clear and should not be altered to avoid what the defendants considered to be absurd consequences. The court found that the plaintiff remained under a disability until the expiration of his sentence, which included periods of leave of absence. Therefore, the limitation period did not begin to run until the plaintiff's sentence was fully served on 9 April 1996. The court struck out the defendants' plea of statute bar and ordered that paragraphs 1 and 2 of the defence be removed. The defendants were also ordered to pay the plaintiff's costs associated with the application.

Orders