Hoy & McCormack v Honan & anor

[1997] QCA 250

Queensland Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of time
3. › Leave to proceed after delay
4. › Order 90 rule 9 Rules of the Supreme Court (Qld)
5. › Whether delay satisfactorily explained
6. › Whether prejudice resulting from delay
7. › Whether prejudice attributable to defendant's own failure to preserve evidence
1. Practice and Procedure
2. › Want of prosecution
3. › Leave to proceed after want of prosecution
4. › Relevant period for assessing prejudice
5. › Whether total passage of time or period since last step in action
6. › Rules of the Supreme Court (Qld), O.90 r.9
1. Appeal
2. › Discretionary decisions
3. › Error of principle by primary judge
4. › Fresh exercise of discretion by appellate court
5. › Whether error had material effect on outcome

Quick Take

On applications for leave to proceed after delay under O.90 r.9 (or equivalent rules), prejudice must be assessed by reference to the total passage of time since the cause of action arose, not merely the period since the last step in the action. However, where the defendant had early and detailed knowledge of the claims and failed to take steps to obtain and preserve evidence, the resulting prejudice is substantially attributable to the defendant's own default and will not constitute injustice sufficient to refuse leave. Impecuniosity caused by the very losses giving rise to the claim is a satisfactory explanation for delay.