Agen Biomedical Ltd v Rankin

[1998] QCA 282

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Self-executing orders
3. › Guillotine orders
4. › Relief from non-compliance
5. › Whether O. 45 r. 1 empowers relief from self-executing order
6. › Whether 'entitle' in O. 45 r. 1 confined to absolute right or extends to discretionary relief
7. › Rules of the Supreme Court (Qld), O. 45 r. 1, O. 90 r. 6
1. Practice and Procedure
2. › Extension of time
3. › Self-executing orders
4. › Power to extend time after expiry
5. › Whether O. 90 r. 6 empowers extension of time for compliance with self-executing order after time has passed
6. › Rules of the Supreme Court (Qld), O. 90 r. 6
1. Practice and Procedure
2. › Self-executing orders
3. › Exercise of discretion
4. › Relevant considerations
5. › Minor default
6. › Absence of prejudice
7. › Whether discretion to relieve from guillotine order properly exercised

Quick Take

The words 'entitle' and 'entitled' in O. 45 r. 1 encompass cases where the applicant depends on a favourable exercise of discretion and does not claim an absolute right to relief; accordingly, O. 45 r. 1 empowers the court to relieve a party from the consequences of a self-executing order where facts arising after the order justify such relief. The supposed limitation in Drabsch v AMP — that the power to extend time under O. 90 r. 6 can never apply where a limitation period has expired — is doubted and appears inconsistent with the High Court's reasoning in FAI v Southern Cross Exploration. Self-executing orders should be reserved for extreme circumstances; where the default is minor and there is no prejudice, relief will ordinarily be granted.