SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the orders proposed by his Honour. 

[2] GOTTERSON JA:  On 31 May 2012, Mrs Heven Leigh Stanley-Clarke, the appellant in this appeal, filed a Claim[1] in the Supreme Court of Rockhampton by which she, as plaintiff, claimed damages against Dr Robert Boyle.  Dr Boyle is the respondent to this appeal.

[3] In the Claim, the appellant sought relief in the following terms:

“1.Damages and/or equitable and/or exemplary damages in an amount to be assessed by and within the jurisdiction of this Honorable Court for personal injuries and consequential loss and damage suffered by the plaintiff in consequence of the negligence and/or breaches of fiduciary duty of the defendant and/or alternatively of the defendant’s failure to discharge his non delegable duty to the plaintiff.

2.Interest pursuant to Section 47 of the Supreme Court Act 1995 [Qld];

3.Costs to be assessed on the indemnity basis of assessment.”

[4] The Statement of Claim[2] filed with the Claim reveals that the damages are sought in respect of a surgical procedure which took place at a hospital at Redcliffe on 29 August 2008.  The appellant’s action against the defendant is one which included damages for personal injury for negligence and breach of duty.  Thus, the limitation period prescribed by s 11 of the Limitation of Actions Act 1974 (“the Act”) for her action was three years.  Consequently, unless the limitation period either had been postponed by the operation of s 38(1) of the Act or was extended by order of the Court pursuant to s 31(2) of the Act, the appellant’s action could not have been brought after 29 August 2011.

[5] The respondent filed a Conditional Notice of Intention to Defend on 28 June 2012.[3]  By this document, the respondent disputed jurisdiction and intended that that proceeding was irregular in three respects.  They may be summarised as defective service of the Claim and the Statement of Claim; failure to comply with the pre-action procedural regime stipulated by the Personal Injuries Proceedings Act 2002 (“PIPA”); and the statutory bar imposed by the Act. 

[6] On 3 July 2012, the appellant filed an Application[4] by which she sought an array of relief evidently intended by her to address irregularities in the proceeding which had been enumerated in the respondent’s conditional notice.  Two days later, on 5 July 2012, the respondent filed an Application[5] in conformity with r 144(4) of the Uniform Civil Procedure Rules 1999 (“UCPR”).  This application sought orders under r 16 of the UCPR setting aside or staying the appellant’s proceeding.  Both applications were returnable, and were heard, on 16 July 2012.

[7] On 24 July 2012, the learned primary judge made orders, the effects of which were to terminate the appellant’s proceeding and to preclude the appellant from bringing other proceedings for the same or similar relief.  Detailed reasons were published on the same day.  The appellant filed a Notice of Appeal in this Court on 14 August 2012 in which she appeals against the whole of the orders made on 24 July. 

[8] The appellant represented herself at the hearing on 16 July.  She had herself prepared the Claim and Statement of Claim.  She also prepared the Notice of Appeal and written submissions filed in this Court on 2 August 2012 and, by invitation of the Court, on 14 February 2013. 

[9] At her request the Court heard the appeal in her absence.  On this occasion the respondent was represented by counsel who had represented him at the hearing below.  The arguments advanced for the appellant on appeal were those outlined in her written submissions.  The appellant sought to rely also on an affidavit sworn by her on 12 February 2013 and filed two days later to which I now turn.

The appellant’s affidavit filed on 14 February 2013

[10] Rule 766(1)(c) of the UCPR permits this Court to receive further evidence as to questions of fact on “special grounds”.  The respondent opposes receipt of evidence by way of this affidavit on the basis that no special ground or grounds for its receipt is made out.  In her submissions, the appellant did not refer to this rule or identify any special ground for reception of the evidence.

[11] The affidavit consists of four brief paragraphs and some 75 pages of exhibited documents.  Almost all of these documents came into existence prior to the hearing of the applications.  They are:

1. documents relating to a complaint made to the Health Quality and Complaints Commission (“HQCC”) by the appellant against the respondent in 2009 concerning this surgery which the HQCC finalised in July 2010 after the appellant withdrew from conciliation proceedings;
2. several documents relating to a similar complaint made by the appellant to the Australian Health Practitioners Regulation Agency (“AHPRA”) in 2010 on which AHPRA, after having undertaken investigation, decided to take no further action in February 2011; and
3. documents relating to proceedings commenced by the appellant in the Queensland Civil and Administrative Tribunal in August 2011 for review of the Agency’s decision to which I have referred.

[12] Many of the above documents were ones to which the appellant was a party; for example, forms filled out by her or correspondence to which she was sender or recipient.  Evidently, the appellant was aware of those documents about the time that they came into existence.  They cannot be received now.  For the others, no evidence is given of when they came to the appellant’s knowledge and, if it was after the hearing on 16 July 2012, no explanation is provided as to why they could not have been obtained beforehand with the use of reasonable diligence.  As the decision of this Court in Clarke v Japan Machines (Australia) Pty Ltd[6] illustrates such an explanation is necessary in order to establish special circumstances for the receipt of further evidence.  In absence of any evidence or explanation with respect to those other documents, the appellant has not made out a case for their reception.

[13] The documents that came into existence after the hearing relate to a renewed complaint made to HQCC in October 2012 which it affirmed to the appellant it had no power to accept, by letter dated 9 January 2013.  There is also correspondence relating to a complaint against AHPRA which the appellant made to the Crime and Misconduct Commission (“CMC”) in November 2012.  The CMC finalised this complaint by correspondence dated 10 December 2012 advising the appellant that it has no jurisdiction with respect to conduct or decisions of the Agency.

[14] It is also clear from the decision in Clarke that evidence that could not reasonably have been obtained prior to the hearing will be received on appeal only if it can be shown that that evidence would have an important impact upon the case.  In my view, it is abundantly clear that these documents which came into existence after the hearing could have no impact at all on the appellant’s case as pleaded.

[15] For these reasons, this Court must refuse to receive the appellant’s affidavit filed on 14 February 2013 and the documents exhibited to it.

The issues at first instance and on appeal

[16] The issues addressed by the learned primary judge consisted of the irregularities identified by the respondent and the extension of time sought by the appellant.  For this, his Honour had regard to the Statement of Claim.  He also made reference to a document titled, “Further Particulars”, filed by the appellant on 2 July 2012.  This document was not filed in response to a request for particulars made by the respondent.  His Honour was not prepared to regard it as supplementing the Statement of Claim by way of amendment.  That course was precluded by departures in the document from the case pleaded in the Statement of Claim.[7]  Also before the Court on that occasion were affidavits of the appellant filed on 3, 11 and 13 July 2012 respectively.

[17] With regard to service, his Honour regarded the defect as curable by an order directing proper service.  The relevance of this defect lay in enlivening the jurisdiction to strike out the proceedings under r 16, not in justifying of itself, a strike out.[8]  As to the PIPA, his Honour identified several breaches of the pre-action regime.[9]  He put to one side consideration of whether statutory discretions to relieve the appellant of the consequences of the breaches ought to be exercised.  He did so on the footing that if the action was statute barred and the proceeding struck out on that account, then no question of exercise of the discretions would arise.[10]

[18] The limitations point involved consideration first of whether s 38(1) of the Act had operated to postpone commencement of the limitation period of three years.  His Honour found that it had not.[11]  The second matter considered arose out of the plaintiff’s application.  It was whether the limitation period ought to be extended under s 31(2) of the Act.  His Honour was of the view that the appellant had failed to make out a case for an extension, and accordingly, he dismissed the application to extend the period.[12]

[19] His Honour acted upon the footing that to continue a proceeding which was bound to fail in the face of a sound limitations defence would be an abuse of process.  He ordered, as the respondent had sought, that the Claim be dismissed and that the appellant pay the respondent’s costs.[13]

[20] At the hearing of the appeal, counsel for the respondent submitted that the topics for consideration by this court are:

(i) was there a postponement of the limitation period by operation of s 38(1); and

(ii) if not, ought the limitation period be extended pursuant to s 31(2).

By this submission, counsel identified the issues for consideration as whether the learned primary judge erred with respect to the findings he made concerning each of these topics.

[21] To my mind, this submission is correct.  Further, it was common ground before the learned primary judge that if there had been no postponement and no extension was granted, then the proceeding was brought out of time.  It would follow inevitably that a limitations defence based on that would succeed and the action would fail.  No issue could sensibly be taken with the course adopted by his Honour once he had made the findings he did make with respect to s 38(1) and s 31(2). 

[22] I note at this point that the above formulation of the issues on appeal is rather generous to the appellant.  Her Notice of Appeal does not set out any grounds of appeal.  In her written submissions, she lists the grounds as:

“1.the justice of the case requires the Extension of Limitation;

2. the merits of the Claim, unfaced with the limitation obstacle, had not been considered;
3. Cause of action in direct relation to damage claim is established, and,

Discovery dates are established as occurring with due diligence.”

It must be said that these grounds themselves lack coherency.  They also reveal some misunderstandings of the law on the appellant’s part.

[23] I propose first to consider the issues as identified by counsel and then make some observations with respect to the appellant’s stated grounds of appeal.

Section 38(1) issue

[24] Section 38(1) of the Act applies to circumstances of fraud of a defendant in two ways: where the plaintiff’s action is based upon the fraud of the defendant or his or her agent, and where the plaintiff’s right of action has been concealed by the fraud of such a person.  In either of those circumstances, the period of limitation does not begin to run the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

[25] As the learned primary judge noted, the relief sought by the appellant as set out in her Claim is not based upon a cause of action for fraud.  The basis of liability on which relief is claimed are causes of action in negligence, breach of fiduciary duty and failure to discharge a non-delegable duty.  The Statement of Claim claims the same relief.  It neither pleads matters of fact which together might found an action based upon fraud nor alleges fraud on the part of the respondent in any respect.

[26] The Statement of Claim alleges the following sequence of events: that the appellant was admitted to the hospital for an abdominal hernia repair and abdominoplasty procedure to be carried out by the respondent; that the respondent visited her on the morning of 29 August 2008 at hospital about one hour before her scheduled surgery and said to her that the hernia repair could be life threatening and that he would not do it; that he said that in lieu, he could perform a full cosmetic face lift plus upper/lower blepharoplasty for the same price as the appellant had pre-paid for the original procedures so long as the surgery proceeded as scheduled; that she verbally agreed; and that surgery was undertaken.  However, there is no allegation in the Statement of Claim that the respondent acted fraudulently on this occasion.  Nor are facts alleged in the Statement of Claim which, if proved, could constitute fraudulent conduct on the respondent’s part at the time.

[27] It is, I think, evident that by her proceeding the appellant has not sought to prosecute an action based upon fraud which she attributes to the respondent.  Furthermore, the evidence on which she relied at the hearing does not contain any hint of fraudulent conduct on the respondent’s part which had the effect of concealing from her any right of action she might have.

[28] His Honour was therefore clearly right in his conclusion that s 38(1) has not operated to postpone the commencement of the limitation period after 29 August 2008. 

Section 31(2) issue

[29] Section 31(2) of the Act confers a discretion to extend the limitation period where it appears to the Court that the following two conditions are met, namely:

1. a material fact of a decisive character relating to the right of action was not within the applicant’s knowledge until after the commencement of the year last preceding the expiration of the limitation period; and
2. there is evidence to establish the right of action apart from the limitation defence.

[30] In Brisbane South Regional Health Authority v Taylor,[14] the High Court held that an applicant who has satisfied these conditions, bears a legal onus of showing that the justice of the case requires the discretion to be exercised favourably and, in order to do so, must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant.

[31] His Honour enquired first as to whether the required conditions were satisfied by the appellant.  This was the correct course to take.  The following paragraphs from the reasons reveal the findings made in the course of that enquiry:

“[34]Essential to the successful prosecution of an application under s 31 is identification of ‘a material fact of a decisive character relating to the right of action’ (s 31(2)(a)). The applicant must show that such a fact was not within her means of knowledge as defined until after 31 May 2011. That is the critical date as the proceedings were commenced on 31 May 2012 and the Court has power to extend for only one year from the date of learning of the material fact. The applicant did not seek to identify any such fact or explain why the matters she pointed to satisfied the requirements of the statute.

[35]The applicant’s material, after referring to sections 31 and 38 of the Act, includes the following, which seems to be the entire content of her application: ‘In accordance with the above legislation the plaintiff states that the first possible date she was able to prove the plaintiff’s (sic) actions were unlawful and unethical was the 04.08.11 when her AHPRA file arrived (a reference to the Australian Health Practitioner Regulation Agency file) and the first possible date she was finally able to prove the defendant’s original offer to be deceitfully made was on the 20.10.11 with the arrival of actual theatre times.’

[36]The significance of the receipt of the [AHPRA] file is said to be that the applicant then first appreciated that the respondent gave an untruthful submission to AHPRA. It is said that ‘as a direct result of his untruthful submission [the respondent] had obstructed the plaintiff’s right to natural justice with [AHPRA] and invaded her civil rights to effective remedy.’

[37]It can be immediately observed that this has nothing to do with the case as pleaded in the Statement of Claim. On its face it has nothing to do with any claim for personal injury at all. It may be that it is the applicant’s intention to abandon her case as pleaded and pursue a different case and one restricted to any loss she can show that follows from the respondent giving an untruthful submission to AHPRA but she did not say that. If the applicant intends to add this as a new and separate cause of action then she will need to amend her Statement of Claim accordingly and in the manner that the rules provide. In short the receipt of the [AHPRA] file would appear to be entirely irrelevant to the application.”  (Citations omitted.)

[32] In the last of these paragraphs, his Honour explained why the documents in the AHPRA file had nothing to do with the appellant’s pleaded case.  He had earlier explained why the booking timesheets disclosing the appellant’s actual theatre times were, at their highest, of peripheral relevance to her case.[15]

[33] At first instance, the appellant therefore failed to persuade the learned primary judge that the documentary material on which she relied, brought to her knowledge any “material fact” of a “decisive character” as those expressions are defined in s 30(1)(a) and (b) of the Act.  In her written submissions, the appellant has failed to identify any error in his Honour’s process of reasoning in this respect.

[34] I would add that apparently during the course of the hearing, the appellant indicated to his Honour her interest in pursuing a yet unpleaded case in the nature of a claim for deceit based on an alleged representation by the respondent that he could perform a full face lift on the appellant when the theatre time that had been booked for her was sufficient only for a partial facelift to be done.  His Honour identified many difficulties that the appellant would encounter with such a case.[16]  Whilst the theatre booking sheets would have a heightened evidential relevance to a case based on that factual setting, as his Honour noted,[17] referring to s 30(1)(c)(ii) of the Act, no evidence was given by the appellant as to what, if any, steps she had taken to find out the information contained in the sheets before the commencement time to which s 31(2)(a) refers, notwithstanding that the appellant was aware from early on both of the facelift that had been undertaken and its outcomes, and of the applicable limitation period.[18]

[35] In my view, his Honour’s decision not to extend the limitation period was clearly justified by his findings that the appellant had not satisfied the condition in s 31(2)(a) relating to a material factor of a decisive character.  The occasion for exercise of the discretion to extend therefore did not arise.

The appellant’s grounds of appeal

[36] The appellant’s first ground of appeal suggests that the discretion conferred by s 31(2) is one that may be exercised “as the justice of the case requires”.  As noted, it is not.  An applicant must satisfy the Court first that the conditions set out in the section exist and, having done that, then persuade the Court that the discretion is to be exercised in the applicant’s favour.  This ground misapprehends the section.

[37] The second ground of appeal suggests that the appellant’s application required the Court to examine the merits of her claim putting to one side the limitation defence.  It is true that the second of the conditions[19] does require consideration of whether there is evidence to establish the action apart from such a defence.  However, here the appellant failed at the first condition.[20]  Once that had occurred, there was no point in the learned primary judge undertaking an evidential analysis of the kind envisaged by the second condition and in reaching conclusions about the sufficiency of the evidence.  In any event, his Honour did make frequent reference to the evidence in the course of explaining the difficulties that the appellant would have with her cases, both pleaded and unpleaded.

[38] The third ground of appeal has two components.  The first is, with respect, unintelligible.  The second appears to contend that his Honour made a factual error in paragraph 47 of the reasons where he stated:

“If the applicant was in doubt about any of those crucial matters it is incumbent on the applicant to show that she took ‘all reasonable steps to find out the fact’ (s 30(1)(c)(2)). The applicant does not attempt that task. In fact the applicant’s material shows that she sought medical advice at one point from a specialist about further surgery, and intended to see a solicitor, but there is no evidence that the applicant in fact sought any advice concerning matters material to her present claim.”

On appeal, the appellant has not demonstrated error in this statement.  This ground cannot succeed.

Disposition

[39] For these reasons, this appeal must fail.

Orders

[40] I would propose the following orders:

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs of the appeal on the standard basis.

[41] DALTON J:   I agree with the reasons of Gotterson JA and the orders proposed.