Casey v Pearson Bridge (Qld) Pty Ltd [1992] QSC 280

( :rr .(J 'fH.ANSCHJ P'f ;·--···. ---·· ··-··· .. -- -.......,_ .... ---·-----.... ~. i ~:: (:·~ .: ; ~-: ~:~ '-~~ c~ ·: ·..! :··- : :.·.-: .:...~ ; ~ 3 uc: t)l OF PIWCEEVIN6;~"';~e;oo; ",~~~J :S 6 9dt/<X ~0 St<~le Reporting Rurenu, t1th Floor, 'Jl1e I....aw Courts, George Street, ~EJSBANE. Q..___4_000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not he made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SKOIEN AJ No 224 of 1986 ROBERT LIONEL CASEY and PEARSON BRIDGE (QLD) PTY LIMITED TOWNSVILLE .. DATE 16/7/92 ORDER 1 Plaintiff Defendant -- 1 of 5 -- '· I 10 20 30 40 50 60 160792 ORDER HIS HONOUR: This is an application by the defendant to extend the time for filing and serving a notice of appeal from a final judgment in a·master and servant personal injury action delivered by Kneipp J which was entered on 10 June 1992. Order 70 rule 4 requires that, such an appealbe instituted within 21 days, that is, by 1 July 1992. A notice of appeal was not filed until 2 ·July 1992, one day beyond time. This summons was taken out the following day. The defendant obtained on about 17 June counsel's opinion that an appeal both as to liability and quantum had prospects r 10 20 () of success. Instructions were given to appeal and on Monday 0 29 June, that is, two days before the deadline~ the defendant's solicitors obtained counsel's settled notice of 30 appeal. The solicitor handling the matter dictated on his dictation machine instructions for his secretary to have the document ient to Brisbane agents for them to file the notice. This affidavit does not mention what occurred in the office () on the following day, Tuesday 30 June. Wednesday 1 July was 40 the local show holiday and the secretarial staff of the CJ defendarit's solicitors did not work that day. On Thursday 2 July the scilicitor checked to see that the notice had been forwarded. for filing, found it had not, and saw to it that it was filed th~t day. He also that day faxed a copy of the 50 notice of appeal ·to the solicitors for the plaintiff who were ' another firm of Townsville solicitors. It ~s clear that ·£her~ was c~relessness or inadv~rtence on 60 Govt. Printer, Old. :c· -- 2 of 5 -- [. 160792 r 1. ORDER the part of the solicitor. He should have adverted to the possibility that his office system would malfunction and should have checked on 30 June to see that it had not. 10 10 The power to extend the time is discretionary. One matter to be considered is whether the appeal has prospects of success. See, for example, Johansen v. CMLA Society Limited (1904) 2 CLR 186. Of course I cannot form any final view on that in _20 a case such as this, but I have not been referred to any 20 ( ' circumstance which would obviously defeat the appeal. On the contrary, the points raised by counsel for the defendant in his advice are, on their face, logical enough and do not seem at all novel in appeals in personal injury cases. Whether 30 they, or some of them, would succeed would depend on an 30 examination by the Court of Appeal of the evidence and the proper application of the law. In my view the appeal is quite arguable and would have reasonable prospects of ( success. 40 40 A primary function to be exercised in deciding this application is that of balancing the possible injustice to the applicant defendant if the application be refused against the possible injustice to the respondent plaintiff resulting . 50 from the disturbance of his seemingly vested interest in the 50 maintenance of his judgment. See Hughes v. National Trustees Executors & Agency Co. of Australasia Ltd. (1978) VR 257 at 263. That immediately gives rise to the point that the interest of the respondent had vested for less than 24 hours -60 60 Govt. Printer, Old. ·· .~ -- 3 of 5 -- --------·-~- 160792( ORDER when he, or his solicitors, were made aware that the applicant intended to challenge it. In that context it is relevant also to remember that 1 July, the deadline, was not 10 a working day in Townsville so that if the applicant had 10 actually filed the notice of appeal, as it was entitled to, on the last available day the plaintiff's Townsville solicitors would not have expected to be made aware of that until 2 July, the day on which they were in fact informed. 20 So mere passage of time could not have lulled the respondent 20 C) into a sense of security. Nor does the evidence reveal any other actions on the part of (J the applicant or its solicitors or by the respondent of the 30 type discussed by Mcinerney J in Hughes. Contrast 30 Moi v. Fong (1976) Qd.R. 7 where the plaintiff had actually been paid her damages between the date when the appeal should have been instituted and the date when it actually was () instituted. 40 40 Moi v. Fong, which was relied on by the respondent, is I (] think distinguishable on the facts not only for the important reason just stated, but also because it was the defendant's insurer which had made the error leading to the delay of six 50 days. Here it was the insurer's solicitors who, 50 predominantly because of the fact that 1 July was a Townsville public holiday, made an error leading to a delay of one day. It was, in my view, a clear case of inadvertence. Inadvertence, if established, can be a factor --~6=0-1-- -------- 60 Govt. Printer, Old. 4 -- 4 of 5 -- j 160792 ORDER in persuading a Judge to exercise his discretion in favour of an applicant. See Rhys Jones & Ors. v. Metropolitan Water Supply and Sewerage Board (1917) QWN 30; Middleton v. Freier 10 & Ors. (1958) Qd.R. 351, especially at 355 to 357 per Philp 10 J. In all of the circumstances, in the exercise of my discretion I think that the balance of justice requires that the appeal 20 be permitted to proceed and I allow the application. I order 20 ( that the time for serving and filing a notice of motion by way of appeal from the final judgment in this matter of Mr Justice Kneipp entered on 10 June 1992 be extended until 3 July 1992. 30 30 I order the applicant to pay the respondent's costs of and incidental to the application to be taxed. 40 40 50 50 ,.------"'-6-"-0-+ ------· ----- 60 Govt. Printer, Old. 5 -- 5 of 5 --