Prior & Prior v Jesberg, Jesberg & South East Queensland Electricity Board

The case involves Rhonda Margaret Prior and Tamara Maree Prior, the latter being an infant represented by her mother, suing Terrance John Jesberg, Lorraine June Jesberg trading as Jesberg Electrical, and the South East Queensland Electricity Board. The plaintiffs seek damages for negligence and breach of statutory duty following the death of Desmond Prior, who was electrocuted while painting a house. The action was commenced but the writ became stale before service was effected. The plaintiffs now seek leave to renew the writ under Order 9 Rule 1 of the Rules of the Supreme Court. The legal issues before the court were whether reasonable efforts had been made to serve the defendants and whether there was other good reason to grant the renewal application. The court found that no efforts had been made to serve the defendants before the writ became stale, but considered the broader question of whether there was other good reason to grant the renewal application. Factors considered included the absence of personal responsibility for the delay on the part of the plaintiffs, the hardship that would be suffered if leave was refused, the absence of actual prejudice to the defendants, and the decision of the defendants not to resist the application.

The court concluded that while the delay was not inconsiderable, it was unlikely to cause significant prejudice to the defendants. The factual issues were not likely to be affected by the delay and records would likely still be available. Furthermore, the defendants had not sought to demonstrate actual prejudice. The court decided to exercise its discretion in favour of the plaintiffs and granted leave to renew the writ. The court invited further submissions on the form of the order and costs.