Reynolds v McDowall

[1998] QCA 316

[1998] QCA 316

COURT OF APPEAL

McPHERSON JA
THOMAS JA

CULLINANE J

No 11467 of 1997

JOHN KEITH REYNOLDS	Appellant (Defendant)
and
ALBERT THOMAS McDOWALL	Respondent (Plaintiff)

BRISBANE
..DATE 09/09/98
090998 T4/RB28 M/T COA225/98
McPHERSON JA: This is an appeal against a decision of a
judge of the Supreme Court sitting in Chambers by which his
Honour gave leave to deliver an amended statement of claim
in the action. The action arises out of matters that
happened a very long time ago, but the case as now pleaded
is, if proved, one in which is now stated in a sufficient
way to sustain a claim of breach of trust or equitable
fraud.

Mr Fleming frankly acknowledges that such a claim is not ordinarily subject to any statutory limitation period and also acknowledges also that his defence, if any, might have to be based on laches or acquiescence. That, of course, is not the issue with which we are concerned at the moment.

If the statement of claim is sufficient on its face, the
defences that follow are matters which counsel will need to
consider before the pleading is drawn. What, however,
Mr Fleming relies upon is the delay and prejudice that he
says will arise from being presented now with a different
statement of claim.

Matters of that kind were considerations for the primary judge to take into account. It is said that he did not do so in a manner that was complete or sufficient for the purpose. I am far from being persuaded of that.

However, the appeal would be one involving a matter of
practice or procedure, as to which there is a very
well-established line of authority that shows that courts of
090998 T4/RB28 M/T COA225/98
appeal will, in a matter like this, which in any event is
interlocutory, not likely interfere.
I can see nothing in the written outlines or in what
Mr Fleming has put before us that would persuade me that we
should depart from that rule in this case, or that has
demonstrated to my mind that the judge below acted wrongly
in exercising his discretion to permit the amended statement
of claim to be delivered.

In the circumstances, the only course that can follow is that the appeal should be dismissed with costs.

THOMAS JA: I agree.

CULLINANE J: I agree.

McPHERSON JA: The order is that the appeal is dismissed with costs.

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