Webster v. Yates - [2007] QSC 242

[2007] QSC 242

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Claim No 41 of 1997

DARREN JOHN WEBSTER	Plaintiff
and
NEIL YATES and BERYL YATES	Defendants

CAIRNS

..DATE 13/04/2007

JUDGMENT

HIS HONOUR: On the 30th of October, 2006 the plaintiff applied to have the action remitted to the District Court, and if necessary, to be granted leave to proceed. The defendants contend that leave is necessary, and further, that it should not be granted. However, if leave is granted, they do not oppose the matter being remitted to the District Court.

The fact that six months has elapsed to have this application finalised rather characterises the progress of the action since it's inception on the 13th of March, 1997. The cause of action is for damages for negligence for personal injuries sustained on the 13th of March, 1994. The service of the writ took nine months to achieve, with a further 10 months before the statement of claim was delivered. Not to be entirely outdone the defendants took 10 months to answer a request for particulars of their defence. That was done in 1999. The year 2000 was something of a stellar year because three positive events occurred; the plaintiff provided a statement of loss and damage; made disclosure; and the parties participated in a compulsory conference pursuant to rule 553 of the Uniform Civil Procedure Rules.

Nothing particularly happened in 2001. In 2002 the defendants completed disclosure and the parties participated in a further conference. The only event reported in 2003 was the plaintiff's provision of an updated statement of loss and damage, and the provision of further taxation documents.

Nothing happened then until the 4th of March, 2005 when a further conference was held. There is some argument as to whether this was a reconvening of the earlier conferences or a new step. This point was raised in July 2006 when the plaintiff gave notice of intention to proceed but the defendants contended that at that point leave was required, hence the present application. If the conference in March, 2005 is to be regarded as a step in the proceeding, leave is not required. If it is not such a step, then the last step was the delivery of the statement of loss and damage on 10 July 2003.

Rule 389(2) of UCPR provides that if no step in a proceeding has been taken for two years since that last step, then leave must be sought. This two year limitation applies to this action even though it was commenced under an earlier procedural regime - see Yrittiaho v The Public Curator (1971) 125 CLR 228. The conference of March 2005 may or may not have been arranged pursuant to rule 553 of the UCPR. Assuming for the purpose of argument that it was, the question is, can that be characterised as "a step in the proceeding"?

Under the previous rule regime a compulsory conference was a step in the proceeding because a matter could not be…

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 Webster v. Yates

Details

AGLC: Webster v Yates [2007] QSC 242
Case: [2007] QSC 242
Decision Date: 13 April 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, Darren John Webster sued Neil Yates and Beryl Yates for damages resulting from alleged negligence and personal injury sustained on 13 March 1994. The plaintiff was a passenger on a fishing vessel operated by the defendants when he suffered an injury to his hand caused by an anchor rope. The defendants denied the allegations of fact and raised issues of delay and prejudice due to the passage of time. The plaintiff sought to remit the case to the District Court and obtain leave to proceed. The defendants argued that leave was necessary and should not be granted, but they did not oppose the remission if leave was granted.

The court considered the procedural history of the case, noting significant delays in serving the writ, delivering the statement of claim, and providing particulars of defence. The court also examined whether the March 2005 conference was a step in the proceeding under the Uniform Civil Procedure Rules. The court determined that the conference was not a step in the proceeding, meaning leave was required to proceed. The court weighed the explanations for the delays, the length of the delays, and the prejudice to the defendants due to the passage of time. The court concluded that there was sufficient explanation for the delay and that the defendants would not be prejudiced to the extent that a fair trial could not be assured.

The court granted the plaintiff leave to proceed and remitted the action to the District Court at Cairns, ordering the plaintiff to pay the defendants' costs of and incidental to the application. The court found that the issues to be litigated were narrow and could be properly ventilated in the District Court, and that the matter could be brought on expeditiously.

The court's decision demonstrates the importance of adhering to procedural timelines and the need for sufficient explanation for delays. The court also highlighted the importance of considering the impact of time on the quality of witness recall and the potential for prejudice to the defendants. The court exercised its discretion to grant leave to proceed and remit the action to the District Court, ensuring that the matter could be heard in a timely and efficient manner.

Orders