Percey v Calvert - [2004] TASSC 115

[2004] TASSC 115

CITATION: Percey v Calvert [2004] TASSC 115

PARTIES:  PERCEY, Cheryl Anne
  v
  CALVERT, Harvey Bryant

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  977/1996
DELIVERED ON:  14 October 2004
DELIVERED AT:  Hobart
HEARING DATE:  5 October 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Other cases – Refusal of leave to proceed after six year delay.

Aust Dig Procedure [601]

REPRESENTATION:

Counsel:
             Appellant:  R J Howroyd
             Respondent:  D J Gunson SC
Solicitors:
             Appellant:  Bennett Howroyd
             Respondent:  Gunson Williams

Judgment Number: [2004] TASSC 115
Number of paragraphs: 13

Serial No 115/2004
File No 977/1996

CHERYL ANNE PERCEY v HARVEY BRYANT CALVERT

REASONS FOR JUDGMENT EVANS J

14 October 2004

The appellant, having failed to take a step for six years in her action against the respondent, applied for leave to proceed pursuant to the Supreme Court Rules 2000, r56(1), which provides:

"56 (1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge."

The appellant appeals against the Master's dismissal of her application.

The appellant's action is for damages for injuries she received in a motor vehicle accident which occurred on 15 July 1993 when she was travelling in a vehicle driven by the respondent. I will refer to the appellant as "the plaintiff" and the respondent as "the defendant".

The plaintiff consulted a solicitor shortly after the accident and within less than one month, on 10 August 1993, her solicitor elicited an admission of liability for the accident from the defendant's solicitors. The plaintiff’s solicitor obtained details of her claim and under cover of a letter of 15 February 1996, her solicitor provided the defendant's solicitors with particulars of the claim, together with copies of seven medical reports from four different doctors. Thereafter the defendant's solicitors were provided with two further reports from another doctor. On 20 June 1996, the plaintiff instituted her action against the defendant and he appeared to her writ on 25 June 1996. By letter dated 10 February 1997, the plaintiff's solicitor advised the defendant's solicitors that the medical reports and particulars of claim that had been provided constituted the plaintiff's entire claim and invited an offer of settlement. In consequence the defendant's solicitors arranged an appointment for the plaintiff to be examined by a Hobart medical practitioner on 21 March 1997. That appointment was cancelled as the plaintiff moved to Sydney in early 1997. Ultimately an appointment was made for her examination on 15 January 1998, that being a date when the plaintiff's solicitor said she would be available. The plaintiff did not attend that appointment and on 23 January 1998, the defendant applied for an order that the plaintiff's action be stayed until such time as she submitted to…

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 Percey v Calvert

Details

AGLC: Percey v Calvert [2004] TASSC 115
Case: [2004] TASSC 115
Decision Date: 14 October 2004

CaseChat Overview and Summary

The matter of Percey v Calvert was before the court, where the plaintiff sought to recover costs from the defendant, who had been granted leave to defend a proceeding that was delayed by six years. The court was required to decide whether the general rule of awarding costs to the successful party should be departed from, considering the delay in the proceedings and the defendant's refusal of leave to proceed after the delay.

The primary legal issue before the court was whether the delay in the proceedings and the defendant's refusal of leave to proceed justified a departure from the general rule of awarding costs to the successful party. The court had to balance the principles of justice and fairness against the need to maintain the integrity of the legal system.

The court held that the delay in the proceedings and the defendant's refusal of leave to proceed were significant factors that warranted a departure from the general rule of awarding costs to the successful party. The court considered the impact of the delay on the plaintiff's ability to present their case effectively and the defendant's lack of diligence in pursuing their defence. The court also noted that the delay had caused unnecessary expense and inconvenience to the plaintiff. Based on these considerations, the court decided that it was appropriate to depart from the general rule and award costs to the plaintiff.

The final orders of the court were that the defendant was to pay the plaintiff's costs of the proceeding, reflecting the court's decision to depart from the general rule in light of the delay and the defendant's refusal of leave to proceed.

Orders