Goldsmith & Tippett v Resolution Life Australasia Ltd

Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300; [1993] HCA 6

AMA v CDK [2009] QSC 287

Chan v Goldenwater LDL Pty Ltd (2021) 7 QR 566; [2021] QCA 87

Goldsmith & Anor v AMP Life Ltd (2021) 7 QR 113; [2021] QCA 20

Goldsmith & Anor v AMP Life Ltd [2020] QDC 140

Goldsmith & Anor v AMP Life Ltd [2023] QSC 15

IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428; [2006] QCA 461

Mbuzi v Favell [2007] QCA 393

Rockett v The Proprietors - "The Sands" Building Units Plan No. 82 [2002] 1 Qd R 307; [2001] QCA 99

Wentworth v Rogers [2002] NSWSC 921

Wentworth v Wentworth [1999] NSWSC 638

Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is further evidence of a strategy to keep these claims alive whilst not having to prosecute them.

"....Rule 668 is in all material respects a re-enactment of O. 45 r. 1 of the Rules of the Supreme Court 1900. Since the decision in K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13, it has been applied in a number of cases in which relief has been sought and granted against the operation of 'self-executing' orders, because of facts arising after an order was made. Little advantage is to be gained from reviewing those or other decisions because in none of them was O. 45 r. 1 employed to set aside a judgment as a substitute for an appeal against it on the ground that the judgment was incorrect, or that it was contrary to or inconsistent with some other decision of this or another court. Indeed there is some authority to the opposite effect: see Stubberfield v Brisbane City Council [1996] QCA 184, 14 June 1996, at 3, 8."

1. As Jackson J said in McIntosh & Anor v Maitland & Ors [2016] QSC 203, the expiry of a limitation pint is an important circumstance, because a party who 'starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right.'
2. Here, the plaintiffs have not proceeded expeditiously, despite the passing of the limitation periods. To the contrary, they have elected to advance the case only when it suited them. No meaningful progress has been made in the claim since it was filed over 4 years ago, and despite enjoying the benefit of the claim being renewed twice.
3. Also, despite telling Daubney J that they would be applying to re-register Gold Tip, nothing on that front appears to have been done.
4. Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is 'further evidence of a strategy to keep these claims alive whilst not having to prosecute them.'"

[8] I am, however, not persuaded that the reasons of the Court on appeal in Anthony v. Rockett [1999] QCA 434 can simply be transposed in this fashion from one defendant to the other. Doing so involves treating as a "fact" or "facts" under r. 668(1)(a) not only the judgment as such but also the reasons for that judgment. Judicial reasons for a decision are not facts, but opinions; and even if the opinions of experts (as Judges of Appeal presumably are) may for some purposes assume the character of facts, it is not that function that is served by judicial reasoning. Its function is to justify the decision or judgment arrived at in the particular proceedings before the court. It is true that the notices of appeal lodged by Mrs Rockett and by the body corporate were in the same or similar terms, but it is impossible to predict with confidence that the same result would inevitably have followed if the body corporate had continued with its appeal no. 7710 of 1998."

"[16] In Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134 at 140, the joint judgment repeated that passage with apparent approval, while remarking that it was unnecessary to consider whether the somewhat obscure qualification expressed by the words "or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary" represented anything more than an illusory relaxation of the primary test, which was that it be "reasonably clear that ... an opposite result would have been produced." I agree with Wilson J. that it was appropriate for the learned trial judge to consider those principles. Doing so is supported by the decision of Handley JA in Harrison v. Schipp [2002] NSWCA 78; (2002) 54 N.S.W.L.R. 612, where that court considered the availability of a Bill of Review and its nature. That action for review was the source of the power described by Griffiths C.J. in Woods v. Sheriff of Queensland, and reproduced in O. 45 r. 1, as described by McPherson JA in Rockett v. The Proprietors - "The Sands" B.U.P No. 82, and in his earlier judgment in K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13 at pp. 19 to 20. The judgment in Woods v. Sheriff of Queensland makes clear that Griffith C.J. was describing relief similar to that obtainable by a Bill of Review.

[18] It is accordingly consistent with the ultimate source of r. 668 to have close regard to those described principles when asking whether facts newly arising or discovered would "entitle" a person against whom an order had been made to be relieved from it, or to an order or decision in that person's favour. Any lesser degree of proof would not establish that the applicant was "entitled" to relief from, or to a different, order. The appellant suggests otherwise in argument, relying on the decision of this Court in Rankin .v Agen Biomedical Ltd [1998] QCA 282; [1999] 2 Qd.R. 435. In that case the Court held that the words "entitle" and "entitled" in O. 45 r. 1 were capable of referring to instances in which the person seeking relief had to depend upon a favourable exercise of discretion, and claimed no absolute right to relief. That case, like K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd, was one in which the applicant relied on O. 45 r. 1 for relief from the consequences of a self-executing order, on the basis that events subsequent to the making of the order justified resort to that rule. It was, with respect, one in which the order under appeal would have been a manifestly unjust exercise of a discretion had the facts subsequently arising or discovered been brought to the knowledge of the judge making the original order. For that reason reference to those cases does help the appellant."

(1993) 176 CLR 300

(1985) 60 ALR 68

(1991) 178 CLR 134

(1981) 147 CLR 589

(1998) 157 ALR 510

(1997) 37 IPR 407