LACHLAN MCINTOSH AND JOHN PARK as trustees of the bankrupt estate of GARY STIRLING CAMM (A BANKRUPT)
(plaintiff)
v
EDWARD JOHN MAITLAND trading as MAITLAND LAWYERS
(first defendant)
and
GARRY BIGMORE
(fourth defendant)
and
JOHN RIBBANDS
(fifth defendant)
FILE NO:
BS3344/14
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
5 September 2016
DELIVERED AT:
Brisbane
HEARING DATE:
7 July 2016
JUDGE:
Jackson J
ORDER:
The order of the court is that:
1. The order of the registrar made on 1 April 2015 to renew the claim is set aside.
2. The claim is dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL – where the plaintiffs did not serve the claim on the defendants within the period of one year starting on the day it was filed – where the plaintiffs started to take steps to serve the claim only seven days before that one year period expired – where the plaintiffs’ claims against the defendant lawyers related to events at least six years ago – where the plaintiffs had been waiting for the outcome of other proceedings to determine whether to progress the claim – where the registrar ordered that the claim be renewed for 12 months pursuant to r 24 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants applied to set aside the renewal – whether courts still have a tendency to relax rigid time limits – whether reasonable efforts had been made to serve the defendants – whether waiting on the outcome of another case was a “good reason” to allow renewal – whether the fact the defendants had some earlier notice of the claim was a “good reason” to allow renewal
[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
AGLC
McIntosh v Maitland [2016] QSC 203
Case
[2016] QSC 203
Decision Date
CaseChat Overview and Summary
McIntosh commenced proceedings against Maitland in the District Court of Queensland, claiming professional negligence. The plaintiffs, McIntosh, alleged that Maitland, their former legal representatives, had negligently conducted their matter, leading to an unfavourable outcome. The claim was filed but not served within the mandated one-year period. McIntosh initiated efforts to serve the claim only days before this period lapsed, having deferred action pending the resolution of related proceedings. The registrar ordered a 12-month renewal of the claim under Rule 24 of the Uniform Civil Procedure Rules 1999 (Qld). Maitland subsequently applied to set aside the renewal.
The court examined whether the plaintiffs had exercised reasonable diligence in serving the claim and if their delay was justified. The plaintiffs' rationale for the delay, including waiting for the conclusion of other litigation, was scrutinised. Maitland contended that the plaintiffs' actions did not constitute reasonable efforts and that the court should not countenance the relaxation of procedural time limits without a compelling justification. The court had to determine if the plaintiffs' reliance on another case's outcome and the defendants' prior awareness of the claim constituted a "good reason" to permit the renewal.
The court found that the plaintiffs had not acted with the requisite diligence to warrant a renewal of the claim. The delay in serving the claim was not accompanied by reasonable efforts to do so within the statutory period. Additionally, waiting for the resolution of another case was not deemed a sufficient reason to excuse the delay. The court held that while it has a discretion to relax rigid time limits, such discretion should be exercised sparingly and only in cases where there is a compelling justification. In this instance, the plaintiffs' reasons were insufficient to merit a renewal of the claim. Consequently, the order renewing the claim was set aside, and the claim was dismissed.
Orders
Orders of the court
The order of the court is that:
1. The order of the registrar made on 1 April 2015 to renew the claim is set aside.