Otis Elevator Company Pty Ltd v Drane - [2021] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

Otis Elevator Company Pty Ltd v Drane [2021] QCA 160

PARTIES:

OTIS ELEVATOR COMPANY PTY LTD

v
MATTHEW NEVILLE DRANE
ACN 002 873 065
(applicant)(respondent)

FILE NO/S:

Appeal No 12861 of 2020
DC No 1688 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 275 (Rinaudo DCJ)

DELIVERED ON:

6 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2021

JUDGES:

Holmes CJ and Wilson and Williams JJ

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where in 2012 the respondent commenced an action in negligence which named the applicant as second defendant – where the last step in the action was taken in December 2016 – where the respondent filed an application for leave to proceed in July 2020 – where the primary judge granted the respondent leave to proceed – where the applicant now applies for leave to appeal against that decision on the grounds that the primary judge did not consider, or properly consider, certain matters relevant to the decision of whether leave should be granted, that his Honour’s reasons were inadequate, and that he made findings which were not supported by the evidence – whether error is demonstrated in the primary judgment – whether, if error is demonstrated, this results in substantial injustice to the applicant

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), s 389(2)

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, considered
Tyler v Custom Credit Corporation Ltd[2000] QCA 178, applied

COUNSEL:

A G Rae for the applicant
J Kimmins for the respondent

SOLICITORS:

King & Wood Mallesons for the applicant
Shine Lawyers for the respondent

HOLMES CJ: The applicant, Otis Elevator Company Pty Ltd, seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 against a decision of a judge of the District Court. His Honour had granted the application of the respondent, Mr Drane, for leave to proceed, pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999, in a personal injuries action which he had brought against Otis Elevator Company and three other defendants. Rule 389(2) provides:
“…
(2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”
In the ordinary course, leave to appeal under s 118(3) will be granted only where an appeal is required to correct a substantial injustice to the applicant and an…

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 Otis Elevator Company Pty Ltd v Drane

Details

AGLC: Otis Elevator Company Pty Ltd v Drane [2021] QCA 160
Case: [2021] QCA 160
Decision Date: 6 August 2021

CaseChat Overview and Summary

Otis Elevator Company Pty Ltd sought to appeal against a decision of the Supreme Court of New South Wales, which had granted Drane leave to proceed with a dormant proceeding against Otis. The respondent had initially commenced an action in negligence against Otis in 2012, naming it as the second defendant. The last step in the proceeding was taken in December 2016, and in July 2020, the respondent applied for leave to proceed. The primary judge granted the respondent leave to proceed, and Otis now sought leave to appeal on the basis that the primary judge did not consider, or properly consider, certain matters relevant to the decision of whether leave should be granted, that his Honour’s reasons were inadequate, and that he made findings which were not supported by the evidence.

The legal issues in the appeal related to whether the primary judge demonstrated an error in his judgment, and if so, whether this resulted in substantial injustice to Otis. Otis argued that the primary judge did not consider, or properly consider, certain matters relevant to the decision of whether leave should be granted, and that his reasons were inadequate. Otis also argued that the primary judge made findings which were not supported by the evidence.

The court found that the primary judge did not demonstrate any error in his judgment. The court found that the primary judge had considered all relevant matters in deciding whether leave should be granted, and that his reasons were adequate. The court also found that the primary judge's findings were supported by the evidence. The court held that Otis had not demonstrated any substantial injustice that would warrant an appeal.

The application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Otis Elevator Company Pty Ltd v Drane [2021] QCA 160
PARTIES:	OTIS ELEVATOR COMPANY PTY LTD v MATTHEW NEVILLE DRANE ACN 002 873 065 (applicant)(respondent)
FILE NO/S:	Appeal No 12861 of 2020 DC No 1688 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2020] QDC 275 (Rinaudo DCJ)
DELIVERED ON:	6 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2021
JUDGES:	Holmes CJ and Wilson and Williams JJ
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where in 2012 the respondent commenced an action in negligence which named the applicant as second defendant – where the last step in the action was taken in December 2016 – where the respondent filed an application for leave to proceed in July 2020 – where the primary judge granted the respondent leave to proceed – where the applicant now applies for leave to appeal against that decision on the grounds that the primary judge did not consider, or properly consider, certain matters relevant to the decision of whether leave should be granted, that his Honour’s reasons were inadequate, and that he made findings which were not supported by the evidence – whether error is demonstrated in the primary judgment – whether, if error is demonstrated, this results in substantial injustice to the applicant District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), s 389(2) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, considered Tyler v Custom Credit Corporation Ltd[2000] QCA 178, applied
COUNSEL:	A G Rae for the applicant J Kimmins for the respondent
SOLICITORS:	King & Wood Mallesons for the applicant Shine Lawyers for the respondent