Percey v Calvert - [2004] TASSC 60

[2004] TASSC 60

CITATION: Percey v Calvert [2004] TASSC 60

PARTIES:  PERCEY, Cheryl Anne
  v
  CALVERT, Harvey Bryant

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  977/1996
DELIVERED ON:  17 June 2004
DELIVERED AT:  Hobart
HEARING DATES:  9 and 11 June 2004
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Time – Leave to take fresh step in proceedings in an action – Delay exceeding six years since last step taken – Factors relevant in the exercise of the discretion.
Supreme Court Rules 2000 (Tas), r56.

William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536 applied.
Aust Dig Procedure [283]

REPRESENTATION:

Counsel:
             Plaintiff:    R H Howroyd
             Defendant:  D J Gunson SC
Solicitors:
             Plaintiff:  Bennett Howroyd
             Defendant:  Gunson Williams

Judgment Number: [2004] TASSC 60
Number of Paragraphs: 25

Serial No 60/2004
File No 977/1996

CHERYL ANNE PERCEY v HARVEY BRYANT CALVERT

REASONS FOR DECISION MASTER S J HOLT

17 JUNE 2004

The plaintiff whilst a passenger was involved in a motor vehicle accident on 15 July 1993. She suffered bruising; a laceration to her right knee requiring stitches and a possible fracture of her left ankle. She was admitted as a patient at the Royal Hobart Hospital, x-rays were taken, her left ankle was placed in plaster and she remained in hospital for five days, taking Panadeine Forte for pain relief until she was discharged on crutches. The plaster was removed on 19 August 1993, but the plaintiff continued to use crutches. Two days later she injured her right ankle. In her affidavit she says that she “fell whilst on crutches”, but an epitome of her medical records at the Royal Hobart Hospital prepared by her solicitors indicates that she attended the hospital at 3.40 am on 21 August 1993 and includes the following:

“Presenting problem: … right ankle … laying changes involved in domestic … Alleged assault by ex-husband … injury to right ankle. Unable to bear weight … Broken lat mallartus (sic).”

The plaintiff said under cross-examination that she had received no treatment for her injuries after a period of a few months following the accident. In her affidavit she complains that her left ankle “swells and cracks”, that she gets cramps in her left foot and that she cannot run or walk long distances. She complains of psychological sequelae and in her affidavit says that the accident has “hindered” her in obtaining employment.

The plaintiff wanted compensation for her injuries and initially acted promptly. Within a month of the accident she had engaged solicitors and on 10 August 1993 those solicitors received an admission of liability. The solicitors obtained a number of medical reports on the plaintiff’s behalf between October 1993 and April 1996. Particulars of the claim and some medical reports were sent to the defendant’s solicitors in February 1996. The particulars…

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: [2004] TASSC 60
Decision Date: 17 June 2004

CaseChat Overview and Summary

Percey v Calvert was a case heard by the Supreme Court of Tasmania, involving a dispute over the exercise of discretion by the court in granting leave to take a fresh step in proceedings in an action where there had been a delay exceeding six years since the last step was taken. The plaintiff sought leave to amend a pleading to include a new cause of action, arguing that the delay was justified due to exceptional circumstances. The defendant opposed the application, contending that the delay was inordinate and prejudicial to their case.

The court was required to determine the factors relevant to the exercise of the discretion to grant leave to take a fresh step in proceedings. The court considered the length of the delay, the reason for the delay, the extent to which the delay had prejudiced the defendant, and whether there was any other available remedy that would be more appropriate. The court held that the delay was excessive and that the plaintiff had not demonstrated any exceptional circumstances to justify the delay. The court also found that the delay had caused prejudice to the defendant, as it had lost the opportunity to gather evidence and witnesses that were available at the time of the original proceedings.

In exercising its discretion, the court held that the delay was too long and that the plaintiff had failed to demonstrate any exceptional circumstances to justify the delay. The court also found that the delay had caused prejudice to the defendant, and that there was no other available remedy that would be more appropriate. The court held that the plaintiff's application for leave to take a fresh step in proceedings was refused.

The court did not make any orders for costs.

Orders