Rankin v Agen Biomedical Ltd

[1998] QCA 282

IN THE COURT OF APPEAL	[1998] QCA 282
SUPREME COURT OF QUEENSLAND

Appeal No. 234 of 1998.

Brisbane

[Agen Biomedical Ltd v. Rankin]

BETWEEN:

AGEN BIOMEDICAL LIMITED (A.C.N. 010 528 980)

(Defendant/Respondent) Appellant

AND:

JANICE MAREE RANKIN

(Plaintiff/Applicant) Respondent

___________________________________________________________________________

McMurdo P.
Pincus J.A.

Cullinane J.

___________________________________________________________________________

Judgment delivered 18 September 1998

Judgment of the Court

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS

___________________________________________________________________________

CATCHWORDS: CIVIL PROCEDURE - guillotine order - non-compliance with self-

executing order -

consent	order
made	requiring
delivery	of

statement of loss and damage and a list of documents within 10 days or action would be

struck out -

statement of loss

and	damage
delivered	but
solicitor	forgot

about a list of documents which was delivered a few days late - appellant suffered no prejudice by the delay - whether O. 45 r. 1 confined power to extend time - whether

revelation that

solicitors
overlooked

delivering the list

of documents

constituted facts arising after the making of the

order	which
entitled	the

respondent to be relieved from it - whether "entitle" and "entitled" in O. 45 r. 1 can refer to instances where

person seeking

relief	has	to
depend	on	a
favourable

exercise	of
discretion	and

claims no absolute
right to relief -
whether discretion
properly

exercised.

Rules of the Supreme Court O. 45 r. 1, O. 90 r. 6
FAI General Insurance Company Limited v. Southern Cross
Exploration NL (1988) 165 C.L.R. 268
Drabsch v. AMP Fire and General Insurance Company Limited [1991]
2 Qd.R. 614
KGK Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985]
2 Qd.R. 13

Counsel:	Mr J Douglas for the appellant. Mr T Matthews, with him Mr P Matthews for the respondent.
Solicitors:	Clayton Utz for the appellant. M A Kent & Associates for the respondent.
Hearing date:	8 September 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 234 of 1998.

Brisbane

Before McMurdo P.

Pincus J.A. Cullinane J.

[Agen Biomedical Ltd v. Rankin]

BETWEEN:

AGEN BIOMEDICAL LIMITED (A.C.N. 010 528 980)

(Defendant/Respondent) Appellant

AND:

JANICE MAREE RANKIN

(Plaintiff/Applicant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18 September 1998

1. This is an appeal from an order of Byrne J. made under O. 45 r. 1, relieving the respondent

plaintiff from the consequences of orders made by Dowsett J. on 29 October 1997. Mr James Douglas

Q.C., who appeared for the appellant, argued that there was no power to make such an order as was

made by Byrne J. and said in the alternative that his Honour wrongly exercised his discretion in making

the order.

1. On 19 July 1996, the respondent issued a writ against the appellant, but did not deliver her

statement of claim until 26 May 1997. The pleading complained of breaches of the appellant’s duty to

the respondent in the course of her employment with the appellant and claimed damages for personal injuries caused by the breaches alleged. A defence was duly delivered and that was followed by

discovery. In September 1997 the appellant’s solicitors wrote asking for the respondent’s statement

of loss and damage and a list of documents, pointing out that both were overdue. Neither that nor a

similar letter written in October 1997 produced any prompt response and, as foreshadowed in those

letters, the appellant applied to the Court about the matter.

1. The application sought a "guillotine" order and on 29 October 1997, Dowsett J. made an order

by consent to the effect that if the documents required were not delivered within 10 days the action be

struck out. The statement of loss and damage was duly delivered, but the solicitor forgot about a list

of documents, which was delivered a few days late and, in consequence of the order of Dowsett J., the

action was, without any further order, struck out.

1. In the reasons of Byrne J., from whose order the appeal is brought, it is explained that it was

not suggested before his Honour that the appellant had sustained any loss or other form of prejudice by

the delay - "at least none which cannot be completely remedied by an appropriate order for costs on

an indemnity basis". His Honour said that the application was resisted principally on the ground that O.

45 r. 1 did not confer a power to grant the relief. It is necessary to deal with the same submission here;

however, we note that the respondent accepted before Byrne J. that "time cannot be enlarged for the

delivery of the list of documents". That concession appears to be difficult to reconcile with the reasons

of the majority of the High Court in FAI General Insurance Company Limited v. Southern Cross

Exploration NL (1988) 165 C.L.R. 268. There, construing a New South Wales rule in terms not

distinguishable, in any relevant way, from our O. 90 r. 6, the court held that:

1.          The discretion conferred by the relevant rule was "not readily to be limited by

judicial fiat" and the rule should not be so read "as to deny to a court power to prevent

injustice in circumstances where the party subject to a conditional order ought to be

excused from non-compliance". (283, 284)

2.          The rule empowered the Supreme Court to extend the time for compliance with

a self-executing order even though the time for compliance had passed.

1. It is true that there is a decision, Drabsch v. AMP Fire and General Insurance Company Limited

[1991] 2 Qd.R. 614, which appears to hold that there is an absolute limitation on the operation of the

rule, in that it can never apply to such a case as the present, where fresh proceedings could not be

brought due to the expiration of a limitation period. This was said (621) "to fall within those exceptions

to which their Honours [in the High Court] made reference". If that refers to the reasons of Wilson J.

in FAI it is not, with respect, readily apparent that any part of those reasons justifies reading such an

exception into the rule; as we have pointed out, Wilson J., whose reasons were agreed to by three of

the other judges, expressed himself in terms which gave no support to a process of judges’ devising

exceptions, not explicit in it, to the operation of the rule. Further, the obtaining of an order extending

time, in such a case as this, is not for any purpose equivalent to the issue of a new writ; the Limitation

of Actions Act 1974 does not operate so as to prevent such an order.

1. We have made these observations lest it be thought that the respondent’s concession concerning

O. 90 r. 6 has been implicitly approved, because this matter is being treated under O. 45 r. 1. The

point taken by Mr Douglas with respect to O. 45 r. 1 is a short one. We do not think it necessary to set out the full terms of the rule which, subject to Mr Douglas’ point, empowers the making of the order

of which the appellant complains. But Mr Douglas says that when the rule refers to facts arising after

the giving of a judgment or making of an order "which entitle the person against whom the judgment or

order is given or made to be relieved from it" and goes on to give another description depending upon

the notion of entitlement, it does not contemplate the exercise of a discretionary judgment. The

argument, which is not without substance, is that the word "entitle" ordinarily connotes an absolute right,

not merely a possibility of applying for relief. In the present case, it is said, the primary judge was wrong

in holding that the revelation that the solicitors had overlooked delivering a list of documents constituted

facts arising after the making of the order of Dowsett J. which entitled the respondent to be relieved

from it.

1. The views expressed by the Full Court in K.G.K. Constructions Pty Ltd v. East Coast

Earthmoving Pty Ltd [1985] 2 Qd.R. 13, are, Mr Douglas concedes, opposed to his contention.

There, as here, O. 45 r. 1 was used to relieve a party from the consequences of a self-executing order

on the basis that events subsequent to the making of the order justified resort to O. 45 r. 1. The order,

made by the Full Court itself, was founded on facts coming to light which were not of such a character

as to create an absolute entitlement; as here, they were only such as would create an entitlement to

favourable consideration. But Mr Douglas says in effect that the Full Court in K.G.K. attributed a

meaning to the notion of entitlement which is unorthodox, that it did so without discussion on the point,

and that we should therefore hold the decision to have been wrong.

8 It is true that in K.G.K., McPherson J. (as his Honour then was) with whom the other judges
agreed, adopted an expansive construction of the rule and in particular of the notion of entitlement used

in it. It seems unlikely, however, that when this was done the fact that the construction accorded to the

rule was of that character went unnoticed. Immediately before reaching the conclusion (at 20) that O.

45 was applicable, there were quoted remarks of Griffith C.J. in Woods v. Sheriff of Queensland

(1895) 6 Q.L.J. 163 at 165, which McPherson J. thought might well have been the inspiration for O.

45, and which were said "to confirm the power to make the appropriate order in the present case".

Griffith C.J.’s dictum referred, not to discovery of facts which made an earlier order simply erroneous,

but to discovery of facts "which render its enforcement unjust".

1. This Court would not readily accede to a submission that it overrule a Full Court decision on

the interpretation of the Supreme Court Rules made years ago, and ever since accepted as representing

the law. If the K.G.K. interpretation of the rule was thought to be unsatisfactory, the position could

have been corrected by an amendment; but although the rules have been subject to extensive

amendment since 1984 when K.G.K. was decided, O. 45 has been left untouched. The words "entitle"

and "entitled" in O.45 r. 1 are capable of referring to instances in which the person seeking relief has to

depend on a favourable exercise of discretion and claims no absolute right to relief; the appellant’s

principal submission must be rejected.

10 As to the suggestion that the discretion was not properly exercised, the facts seem amply to

justify the primary judge’s conclusion. Although the action had been moved along rather slowly on the

respondent’s side, it was not a stale one, having been begun 15 months before, and the defence

delivered 3 months before, the order was made striking the action out. Further, the case had on only one occasion prior to the striking out order been the subject of an order of the court; that was in May

1997, when a self-executing order was made with respect to delivery of the statement of claim. We

note that in K.G.K., after the self-executing order was made, two further orders had been made

extending the time for compliance; here, there were no extensions of time. What made the self-

executing order operate was a delay of a few days in delivery of a list of documents, the more important

document (the statement of loss and damage) having been duly delivered.

11 It was suggested in the course of argument that if strong effect is not given to self-executing

orders, inconvenient consequences will ensue. That does not seem likely. In this case, the self-

executing order was made by consent, but had it not been consented to, one would not have expected

the court to make such an order. If self-executing orders are reserved for extreme circumstances,

where it appears that no other order would move the party in default into action, they will be effective

enough; the circumstances may then well be such that an application to remedy the defaulting party’s

position, under O. 90 r. 6 or O. 45 r. 1, would fail.

12 This appeal is dismissed with costs.