Tyson v Morgan - [1998] QSC 90

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No. 744 of 1995

Before Mr Justice Ambrose

[Tyson v Morgan]

BETWEEN:

EUNICE LUCY TYSON
Plaintiff

AND:

BRADLEY CHARLES MORGAN

Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 13 May 1998

CATCHWORDS: PERSONAL INJURIES - Renewal of a Writ of Summons - Effect of delay of service - Motor Vehicles Insurance Act 1936

Jones v. Jebras & Hill [1968] 1 Qd.R. 13
Borg v. Muscat [1972] Qd.R. 253
Dempsey v. Dorber [1990] 1 Qd.R. 418
Brisbane South Regional Health Authority v. Taylor (1996) 186
C.L.R. 541

Counsel: Mr R.J. Oliver for the plaintiff

Mr S.C. Williams Q.C. for the defendant

Solicitors: Baker Johnson for the plaintiff

Quinlan Miller Treston for the defendant

Hearing Date: 8 May 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 13 May 1998

This is an application by a plaintiff pursuant to R.S.C. O. 9 r. 1 for renewal of a Writ of Summons issued on 4 May 1995. The Writ of Summons has not been served on the defendant and the application to renew made on 23 April 1998 was served upon the motor vehicle insurer of the defendant.
The Writ of Summons became stale on 4 May 1996, so a period slightly in excess of two years has elapsed from the time the plaintiff may without leave have renewed the writ under R.S.C. O.9 r.1(1).
To succeed on her application the plaintiff must show that reasonable efforts have been made to serve the defendant or that some other good reason justifies the renewal.
The plaintiff was injured in a motor vehicle accident on 15 July 1992. The Writ of Summons therefore issued two months before the expiration of the limitation period within which action with respect to it might be brought.
A period of nearly five years and nine months has expired between the time the cause of action allegedly arose and the date the application was made to renew the writ.
The plaintiff suffered very significant injury in the motor vehicle collision, although it was agreed upon application that the quantum of damage would probably be within the jurisdiction of the District Court. Presumably if the writ be renewed an application will be made to transfer the action to that Court.
The plaintiff has adduced an enormous amount of material upon this application highlighting the significant injuries she received and the medical treatment obtained for them from a large number of medical practitioners. That material seems to me to have little relevance to the issues upon this renewal application and I do not propose to analyze it.
What does emerge however, is that it was not until 28 January 1996 that the solicitors for the plaintiff took steps to have the Writ of Summons served on the defendant by a process server. By letter from that process server dated 19 April 1996, the plaintiff’s solicitors were advised that it had been unable to locate the defendant although neither the extent nor persistence…

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.

Continue reading Tyson v Morgan

Details

AGLC: Tyson v Morgan [1998] QSC 90
Case: [1998] QSC 90
Decision Date: 13 May 1998

CaseChat Overview and Summary

Eunice Lucy Tyson applied to the Supreme Court of Queensland for the renewal of a Writ of Summons issued on 4 May 1995. The Writ of Summons had not been served on the defendant, Bradley Charles Morgan, and the application to renew was served on his motor vehicle insurer. The Writ of Summons became stale on 4 May 1996, meaning that a period slightly in excess of two years had elapsed from the time the plaintiff could have renewed the writ without leave under R.S.C. O.9 r.1(1). For the application to succeed, the plaintiff had to show that reasonable efforts had been made to serve the defendant or that some other good reason justified the renewal. The plaintiff was injured in a motor vehicle accident on 15 July 1992, and the Writ of Summons was issued two months before the expiration of the limitation period. Nearly five and a half years had elapsed between the time the cause of action allegedly arose and the date the application was made to renew the writ. The plaintiff had adduced a significant amount of material highlighting the injuries she received and the medical treatment obtained for them from a large number of medical practitioners. However, the court found that the material was not relevant to the issues upon the renewal application.

The plaintiff's solicitors took steps to have the Writ of Summons served on the defendant by a process server on 28 January 1996. The process server was unable to locate the defendant, and the plaintiff's solicitors had advised the defendant's motor vehicle insurer of the plaintiff's injury and her intention to hold the defendant responsible by letter of 21 January 1994. The defendant's insurer obtained a copy of the traffic accident report and witness statements in July 1992. By letter dated 9 June 1994, the defendant's insurer advised the solicitors for the plaintiff that it had completed its investigations and believed that the plaintiff was responsible for her injury and therefore denied liability.

The plaintiff's solicitors forwarded a copy of the Writ of Summons issued by the plaintiff on 4 May 1995 to the defendant's insurer by letter of 17 January 1996. The defendant's insurer replied to the plaintiff's solicitor by letter of 4 April 1996, advising that its present solicitors would be handling the matter for it. On 19 July 1996, the insurer's solicitor sent a letter to the plaintiff's solicitor requesting advice as to service upon the defendant. The plaintiff's solicitors requested that the solicitors for the insurer obtain instructions as to whether they would be prepared to accept service of the writ "on behalf of their insured." The insurer's solicitor reaffirmed the attitude expressed in the insurer's letter to the plaintiff's solicitors of 9 June 1994.

The court found that reasonable efforts had not been shown to have been made to serve the defendant with the Writ of Summons within twelve months of its issue. The court was unpersuaded that any reasonable efforts were made to locate the defendant. The court found that the plaintiff had not satisfied it that reasonable efforts had ever been made on her behalf to effect personal service on the defendant within the period of twelve months from the date of its issue on 4 May 1995. The court found that there was no good reason why the writ should be renewed in spite of the fact that reasonable efforts had not been made to serve it within twelve months. The court dismissed the application and ordered that the plaintiff pay to the respondent its costs of and incidental to the application to be taxed.

Orders