Court of Appeal (Qld)|2001-10-23|Before: McMurdo P, Thomas JA and Cullinane JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made
McMurdo P, Thomas JA and Cullinane JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made
Catchwords
APPEAL AND NEW TRIAL – QUEENSLAND – TIME FOR APPEAL –
EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT
OR REFUSAL –
where applicant was late by only one day – whether appeal plainly hopeless
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – QUEENSLAND – TIME FOR APPEAL –EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANTOR REFUSAL –where applicant was late by only one day – whether appeal plainly hopelessso as not to allow extensionof time CONTRACT – GENERALCONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – OFFER – TIMEFOR EXERCISE – wherethe applicant was unsuccessful in an action foralleged personal injuries against various defendants – where she filed anoticeof appeal against that decision – where she received two offers ofsettlement of her appeal conditional upon her discontinuanceof her appealaction – where the offers were open for seven and four days respectively– where the seven day offer was“open for acceptance for a period ofseven (7) days only - where the applicant accepted both offers - where theapplicant thenrejected both offers and refused to discontinue her appeal action
– where the trial judge concluded the parties had reached
a binding
compromise agreement and that the applicant’s appeal had been
compromisedCONTRACT – GENERAL CONTRACTUAL PRINCIPLES – OFFER
AND ACCEPTANCE – ACCEPTANCE – LEGAL PRINCIPLES - WITHIN
WHAT TIME
– where the applicant accepted the seven day offer on the last day of the
offer after business hours – whether
the time for acceptance of the offer
ran from the actual hour it was received – where the law does not in
general recognise
fractions of a day – where the proper interpretation of
the offer was that it would expire at the end of the seventh full day
after
receipt – where the form of words used by the applicant - ‘I am
prepared to accept this offer’ was not a
mere statement of intention to
consider but constituted a binding acceptance – Giblin
distinguishedEQUITY – UNDUE INFLUENCE AND DURESS – where
the applicant argued she should have been advised to seek independent legal
advice – where there is no onus on a party in adversarial negotiations to
advise the adversary to seek legal advice –
Amadio distinguished
Acts Interpretation Act 1954 (Qld), s 38Electronic
Transactions Act 1999 (Cwth), s 4, s 8(1).Commercial Bank of
Australia Ltd v Amadio [1983] HCA 14
(1983) 151 CLR 447, distinguishedDuncan v
Mendes [1998] NSWSC 209, Appeal No 40757 of 1996, 29 May 1998, referred
toEx parte Tooheys Ltd
Re Butler [1934] NSWStRp 26
(1934) 34 SR (NSW) 277, referred
toGiblin v Duggan, Appeal No 3105 of 1980, 8 March 1981,
distinguishedLester v Garland [1808] EngR 326
(1808) 33 ER 748, referred
toMorris v FAI General Insurance Co Ltd [1996] 1 Qd R 495, referred
toNewton, Bellamy & Wolf v State Government Insurance Office
(Qld) [1986] 1 Qd R 431, referred toProwse v McIntyre [1961] HCA 79
(1961) 111
CLR 264, referred toRe North
Ex parte Hasluck [1895] 2 QB 264,
referred toWatson v Issell (1890) VLR 613, referred to
Judgment (19 paragraphs)
[1]
APPEAL AND NEW TRIAL - QUEENSLAND - TIME FOR APPEAL - EXTENSION OF TIME - GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - where applicant was late by only one day - whether appeal plainly hopeless so as not to allow extension of time
[2]
CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - OFFER - TIME FOR EXERCISE - where the applicant was unsuccessful in an action for alleged personal injuries against various defendants - where she filed a notice of appeal against that decision - where she received two offers of settlement of her appeal conditional upon her discontinuance of her appeal action - where the offers were open for seven and four days respectively - where the seven day offer was "open for acceptance for a period of seven (7) days only - where the applicant accepted both offers - where the applicant then rejected both offers and refused to discontinue her appeal action - where the trial judge concluded the parties had reached a binding compromise agreement and that the applicant's appeal had been compromised
[3]
CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - ACCEPTANCE - LEGAL PRINCIPLES - WITHIN WHAT TIME - where the applicant accepted the seven day offer on the last day of the offer after business hours - whether the time for acceptance of the offer ran from the actual hour it was received - where the law does not in general recognise fractions of a day - where the proper interpretation of the offer was that it would expire at the end of the seventh full day after receipt - where the form of words used by the applicant - 'I am prepared to accept this offer' was not a mere statement of intention to consider but constituted a binding acceptance - Giblin distinguished
[4]
EQUITY - UNDUE INFLUENCE AND DURESS - where the applicant argued she should have been advised to seek independent legal advice - where there is no onus on a party in adversarial negotiations to advise the adversary to seek legal advice - Amadio distinguished