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

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.

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…

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: [1998] QCA 282
Decision Date: 18/09/1998

CaseChat Overview and Summary

In the case of Rankin v Agen Biomedical Ltd, the appellant, Agen Biomedical Ltd, sought to appeal against an order made by Byrne J, which relieved the respondent, Janice Maree Rankin, from the consequences of a self-executing order made by Dowsett J. The self-executing order was made after Rankin failed to deliver a list of documents within the specified time frame, leading to the striking out of her action. The appellant argued that Byrne J lacked the power to make such an order and, in the alternative, that Byrne J had improperly exercised his discretion in making the order. The key legal issues before the court were whether Rule 1 of Order 45 of the Supreme Court Rules (O. 45 r. 1) confined the power to extend time and whether the 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.

The court examined the arguments presented by both parties and considered the interpretation of "entitle" and "entitled" in O. 45 r. 1. The court found that these terms could refer to instances where the person seeking relief had to depend on a favourable exercise of discretion and did not claim an absolute right to relief. The court also concluded that Byrne J had properly exercised his discretion in making the order, as the facts justified the primary judge's conclusion. The court held that the appeal was dismissed with costs.

This decision reinforces the principle that self-executing orders are effective enough when reserved for extreme circumstances, where it appears that no other order would prompt the defaulting party into action. The court also emphasised that the circumstances may be such that an application to remedy the defaulting party’s position, under O. 90 r. 6 or O. 45 r. 1, would fail.

Orders