Convery v Decretum Pty Ltd & Ors [1999] QSC 296

J!;l TIeE -~.,:.: .. ;~....;...- 31101 State Reporting "-" \ / TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 148 of 1997 PAUL MICHAEL CONVERY Applicant and DECRETUM PTY LTD First Respondent and CHEQUER HOLDINGS PTY LTD Second Respondent and IGORS JANIS NIKOLAJS RUBULIS Third Respondent CAIRNS .. DATE 06/09/99 JUDGMENT 1 I 11"",-, The I.aw ('ourls, (;('OIW~ SIred, nrishalll', Q. ~f)()() Tdcpholll': [(7) Jl~7 ~J()() Fax: (1l7) J~·n SSJZ -- 1 of 5 -- , , 060999 D.1 T14/MFK M/T CNS795/99 (Jones J) {IISHONOUR: This is an application to renew a writ, which has gone stale because it was not served within 12 months of its issue on 5 November 1997. By the writ the ~pplicant claimed damages for negligence, breach of contract and breach of statutory duty in respect of 10 an injury, which he sustaineq in the course of his employment on 7 November 1994. The plaintiff was a professional driver. On 7 November 1994 he suffered a decompression illness, whlch· he alleges waEfdlle to the conditions in which he was required to work on that day. He was evacuated from the work site by helicopter and c= taken to the Townsville General Hospital. He has been treated by a number of doctors since that time. 30 On 10 November 1994 he made an application for workers compensation benefits and supported that application by a handwritten statement some eight days later. His employer also made a statement to the Workers Compensation Board. 40 The delay in pursuing his claim for damages by serving the write was explained by the plaintiff's solicitor as being due to his delays in completing investigations in to the incident. This involved obtaining medical reports and an expert opinion 50 from an occupational therapist. There was also a period of delay between January and September 1998 when solicitors appear to have taken no action and following that had difficulty in locating the applicant. 60 2 JUDGMENT -- 2 of 5 -- 060999 D.1 T14/MFK M/T CNS795/99 (Jones J) The failure to renew the writ occurred during this latter period. The oversight was recognised soon thereafter and has led to this applicant being made. A question arises whether the application is made pursuant to the old rules of the Supreme Court or Order 9, Rule 1 or its replacement Rule 24 of the Upiform and Civil Procedure Rules. They are, in quite different terms, Order 9, Rule 1 requires a Judge to be satisfied that reasonable efforts have been made to serve the writ on the defendant or that for other good reason the writ snbuldbe renewed. Rule 24 does not set out in any specific terms any matter about which the Court must be satisfied but it clearly identifies that the making of the order is a discretionary exercise. Since in this case there has been no attempt to serve the defendant before the writ became stale, I would, if applying Order 9, Rule 1 have to be satisfied that for "good reason" the writ should be renewed. This situation under the old rules invited consideration of matters similar to what must be considered an application to 10 20 30 40 proceed after a long delay and that includes after a 50 limitation period had expired. See Jones v. Jebras & Hill (1968) Qd.R 13. Ultimately the exercise of discretion involves a balancing of the rights of the plaintiff to pursue a claim and the rights 60 3 JUDGMENT -- 3 of 5 -- ~--------- --_.----_.-------- 060999 D.l T14/MFK M/T CNS795/99 (Jones J) of the defendant not to suffer particular prejudice as a consequence upon delaying. In Brisbane, South Regional Health Authority v Taylor, 70ALJR866 , though a case which dealt with extension of time, the High Court discussed the questions of exercise of a 10 similar discretion once an applicant "for that relief had shown grounds for the discretion to be exercised. After the various statutory prerequisites have been established, the judgments of the High Court distil the issue to the question - of whether the delay has made the chance- of a fairt"r-ial unlikely. c In this case, I have come to the view that the writ ought to be renewed regardless of what rule is applicable. The delay 30 has been explained. The length of the delay is relatively short and I am not convinced that there is any significant prejudice to the defendant. c Mr Laney, in his affidavit on behalf of the defendant, spoke 40 of the company no longer having dive records for the relevant (~ \..~ period. That affidavit was sworn before the filing of the applicant's solicitor's second affidavit, which detailed the circumstances in which the applicant was working when he is alleged to have sustained his injuries. The receipt of this 50 affidavit was the first time in which the defendants had had particularised for them the circumstances in which the claim is based. 60 4 JUDGMENT -- 4 of 5 -- 060999 D.l T14/MFK M/T CNS795/99 (Jones J) Given the circumstances of the plaintiff's injury and what must have been a rather dramatic awareness that he had been injured, which led to his evacuation from the work site, one would expect that the memories of those involved would be still quite reliable and given that it is not such a significant period of delay that the witnesses ought to be able to be identified and available to give evidence. Certainly nothing contrary to that inference has been suggested. In all the circumstances therefore, it is my view that the writ ought to be renewed and I so order. I further order that the applicant should pay the respondents' costs of an incidental to the application. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --