- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Claim No 372 of 2003
DEBRA MICHELLE FITZALAN AND GEOFFREY FITZALAN
QUEENSLAND X-RAY PTY LTD (ACN 094 502 208)
HIS HONOUR: This is an adjourned hearing of an application principally for the trial of a separate issue, namely the issue of liability of the defendant, Thomas Wright. The claim is for damages for negligent or misleading advice concerning the tests which should have been undertaken during the pregnancy of the first named plaintiff.
The issues have been clearly defined in the most recent exchange of pleadings which are the further amended statement of claim and the amended defence. The plaintiffs have now served a reply to the amended defence.
The issue of liability hinges on firstly, what were the terms of the advice given by the defendant to the plaintiffs and secondly, whether such advice was negligent or for the purposes of the Trade Practices Act, misleading. Other matters of causation will largely turn on the effect of the expert opinion as to what advice would be given in the circumstances as the Court finds them to be. Ultimately, this will very much turn on the credibility of the parties. It seems that there is a measure of consistency in the opinions that have been so far expressed by the experts in reports obtained by either side.
The defendant initially raised an objection based on the fact that if credibility was going to be an important issue then the Court should have the advantage of testing credibility on all issues including assessment of quantum. Against that of course is the fact that this would be a relatively large claim for damages and the compilation of the allowances would require the obtaining of a variety of expert reports which would be attended by considerable cost.
Taking all these matters into account, I am convinced that the issue of liability is quite discretely outlined in the pleadings. I am conscious of concerns about trying separate issues in trial that have been expressed in a number of the authorities placed before me, but it is a matter of discretion and because the questions which go to the issue of liability do appear to me to be quite discrete, that I will exercise my discretion in favour of ordering a separate trial on that liability issue.
The counsel for either party have considered such an outcome and have proposed that the issue be defined by reference to the paragraphs in the statement of claim. In my view that is the appropriate way to define the questions for the purposes of part 5 of chapter 13 of the Uniform Civil Procedure Rules. I propose therefore to define the separate question by reference to the relevant paragraphs of the statement of claim.
Mr Mullins, counsel on behalf of the plaintiffs has sought that the hearing of the separate issue be immediately listed on the list of matters awaiting trial in the hope that it could be dealt with in the June sittings of this Court. Mr Morzone, counsel for the defendant opposes that step, saying that there are still further inquiries being made on behalf of the defendant which may lead to further applications. There is in my view, force in that submission. Recent affidavits have been filed in support of this application, particularly that of Ms Philp, which indicate to some extent the nature of the inquiries that have been undertaken and where those inquiries are likely to be followed up.
There does not seem to me to be any urgency in the matter being listed for trial at this stage. For my part, given the complexity of the factual basis upon which the expert opinions depend, that the defendant ought to have proper opportunity to consider its position and to make inquiries.
I would, at this stage, require that each party certify their readiness for trial in the usual manner. If there is any untoward delay in relation to completing those inquiries and certifying the matter as being ready for trial, then I will deal with that if such matter arises. To this end, I will give the parties liberty to apply.
Now, the issue of costs should be dealt with by simply reserving the costs at this stage. In the end result, my orders will be as follows:
(1)The question of liability being the issues raised by paragraphs 1 to 11 and paragraph 14 to 20 of the further amended statement of claim, proceed to trial as a separate issue to be determined.
(2)I order that the parties have liberty to apply on giving to the other parties four business days notice.
(3)The costs of the application will be reserved.
- Published Case Name:
Debra Michelle Fitzalan and Geoffrey Fitzalan v Thomas Wright
- Shortened Case Name:
Fitzalan v Wright
 QSC 75
21 Mar 2005
No Litigation History