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Neutze v Clarke[2022] QSC 155

SUPREME COURT OF QUEENSLAND

CITATION:

Neutze v Clarke & Anor [2022] QSC 155

PARTIES:

CATHERINE NEUTZE

(applicant)

v

BARTON CLARKE

(first respondent)

STATE OF QUEENSLAND

(second respondent)

FILE NO/S:

7382 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane 

DELIVERED ON:

25 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2022

JUDGE:

Hindman J

ORDER:

  1. Application dismissed. 
  2. The applicant pay the respondents’ costs of the application.
  1. Grant leave under rule 376(3) of the Uniform Civil Procedure Rules 1999 for the plaintiff to amend the claim and statement of claim to remove the pleaded negligence action.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the applicant filed a proceeding including a negligence claim in the nature of a failure to warn case – where the proceeding is statute barred by section 11(1) of the Limitation of Actions Act 1974 (Qld) – where the alleged material fact of a decisive character was medical reports along with solicitor’s advice of a viable claim – where the applicant consulted with three sets of solicitors regarding her claim – where the first defendant had become cognitively impaired since the claim had been filed – whether medical reports along with legal advice was a material fact of a decisive character – whether all reasonable steps taken to find out the relevant material facts of a decisive character – whether there was prejudice to the respondents from the first defendant’s declining cognitive status rising to the level that would make a trial inherently unfair.

Limitation of Actions Act 1974 (Qld), ss 30, 31

Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301

Brisbane South Regional Health Authority (1996) 186 CLR 541

Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465

Castlemaine Perkins Ltd v McPhee [1979] Qd R 469

Cowie v State Electricity Commission (Vict) [1964] VR 788

Do Carmo v Ford Excavations Pty Ltd [1984] 154 CLR 234

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325

NF v State of Queensland [2005] QCA 110 

Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112

Sugden v Crawford (16 October 1987, unreported)

State of Queensland v Stephenson [2006] 226 CLR 197

Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:

  1. Wilson for the applicant
  2. Schneidewin and R Nattrass for the respondents

SOLICITORS:

AJB Stevens Lawyers for the applicant Minter Ellison for the respondents

Application pursuant to s. 31 LAA

  1. [1]
    The applicant applies for an extension of time pursuant to section 31 of the Limitation of Actions Act 1974 (Qld) (LAA).
  2. [2]
    The applicant filed a proceeding in the Supreme Court of New South Wales on 4 October 2018, which proceeding includes a negligence claim in the nature of a failure to warn case, in respect of two surgeries that the applicant underwent in 2011.  The applicant is the plaintiff in the proceeding.  The first and second respondents to the present application are the first and second defendants respectively in the proceeding.  The proceeding was transferred to this court on 1 July 2019.  The law of Queensland applies to the claim.  
  3. [3]
    The pleaded negligence claim is statute-barred (by operation of section 11(1) of the LAA) and should not be permitted to proceed further, unless the present application is successful.     

Relevant test 

  1. [4]
    The relevant provisions of the LAA for the purpose of the present application are as follows: 

“31Ordinary actions

  1. (1)
    This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
  1. (2)
    Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - 
  1. (a)
    that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
  1. (b)
    that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation,

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. …”

“30Interpretation

  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34 - 
  1. (a)
    the material facts relating to a right of action include the following - 
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; 

  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; 

  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty, 
  1. (b)
    material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing - 
  1. (i)
    that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
  2. (ii)
    that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action, 
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if - 
  1. (i)
    the person does not know the fact at that time; and
  2. (ii)
    as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.
  1. (2)
    In this section - 

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

Matters not in dispute - s. 31(2)(b) LAA satisfied 

  1. [5]
    The parties are agreed, and I accept, that s. 31(2)(b) LAA is satisfied on the evidence before me.  That is, there is evidence to establish the relevant right of action apart from a defence founded on the expiration of a period of limitation.  

The nature of the negligence claim 

  1. [6]
    The statement of claim dated 4 October 2018 reveals details of the pleaded negligence claim (in summary below): 
    1. (a)
      The plaintiff is a 52-year-old woman (as at 2018).[1]
    2. (b)
      The plaintiff was a patient of, and in the care of, the first and second defendants and received medical advice and services from the first and second defendants.[2]
    3. (c)
      In about 2010, the plaintiff consulted with the first defendant (then a practising obstetrician and gynaecologist[3]) in relation to her urinary incontinence.  The first defendant practised at places including premises of the second defendant.[4]
    4. (d)
      The first defendant advised and treated the plaintiff, including by way of two surgeries that occurred in 2011.[5]
    5. (e)
      In respect of that advice provided by the first defendant to the plaintiff, it is alleged by the plaintiff that the first defendant:[6]
      1. advised the plaintiff that her condition should be treated by way of surgery;
      2. advised the plaintiff that the procedure would incorporate a “tape”;
      3. did not discuss the literature and information known, or which ought to have been known, by the defendants concerning complications with such “tape”;
      4. did not provide the plaintiff with other surgical or other options, including low risk conservative measures, in order that the plaintiff could make an informed decision and provide informed consent, apropos the surgical insertion of the “tape”. 
    6. (f)
      The plaintiff’s condition was not resolved by either of the 2011 surgeries and the plaintiff’s condition continued to deteriorate (with additional complaints).[7]
    7. (g)
      It is alleged by the plaintiff that the defendants breached the duty of care owed by them to the plaintiff in that they:[8]
      1. failed to warn or to provide any or any adequate information to the plaintiff in respect of a risk, or other matter, of which the defendants knew or ought to have known concerning the suitability of the medical products, which were to be surgically implanted within the plaintiff;
      2. failed to take reasonable care to provide the plaintiff with such information as a reasonable person in the plaintiff’s position would, in the circumstances, want to be given before deciding whether or not to undergo the proposed treatment;
      3. failed to take reasonable care to provide the plaintiff such information as the defendants knew, or ought to have known, the plaintiff would have wanted to have been given before determining whether to undergo the proposed treatment or not. 
    8. (h)
      It is alleged by the plaintiff that had the plaintiff received the information referred to in the pleading,[9] that the defendants ought to have provided to her, the plaintiff would not have agreed to the 2011 surgeries.[10]
    9. (i)
      It is alleged by the plaintiff that the plaintiff has suffered and continues to suffer serious injury, loss and damage as a consequence of the defendants’ breaches of the duty of care. 
  2. [7]
    Focussing on the advice alleged to have been given or not given by the first defendant as pleaded by the plaintiff in the statement of claim, the applicant in her affidavit filed 19 May 2022:  
    1. (a)
      at [20]-[49] details her recollection of the advice given to her and not given to her prior to the first surgery; 
    2. (b)
      at [70] and [75]-[86] details her recollection of the advice given to her and not given to her prior to the second surgery.
  3. [8]
    In respect of the serious injury, loss and damage pleaded in the statement of claim, the applicant in her affidavit filed 19 May 2022 sets out at [410]-[411] an extensive list of the signs, symptoms and disabilities she has suffered since the first surgery.  Her affidavit details how those matters have had a significant detrimental effect on all aspects of her life.

Material fact of a decisive character 

  1. [9]
    To protect the negligence cause of action pleaded in the proceeding, that was filed on 4 October 2018, the material fact of a decisive character relating to the right of action must not have been within the means of knowledge of the applicant prior to 4 October 2017.

The applicant’s position 

  1. [10]
    The applicant’s written submissions identify at [9] that the material fact of a decisive character relating to the right of action that was not within the means of knowledge of the applicant until on or about 11 December 2017 was: 

“the advice of her solicitors, AJB Stevens that on or about 11 December 2017 they first advices [sic] Mrs Neutze that she has a viable claim against the respondents and that the firm would represent her in the proposed claim.” 

  1. [11]
    I pause here to note that it is difficult to see how that could be a material fact of a decisive character relating to the right of action.  It is merely legal advice about the right of action.  It is not, in my view, a material fact relating to the right of action.  
  2. [12]
    However, as the applicant’s oral argument was developed during the hearing of the present application, the applicant alleged that the material fact of a decisive character relating to the right of action that was not within the means of knowledge of the applicant until on or about 11 December 2017 was: 
    1. (a)
      information contained in the material provided by the applicant to the applicant’s solicitors on 26 October 2017 and in particular: 
      1. a report from Dr Lander dated 5 December 2013;  
      2. a report from Dr Reid dated 17 March 2014; 
      3. a further report from Dr Lander dated 27 July 2017, 
    2. (b)
      combined with the applicant’s solicitors’ advice that the applicant had a viable claim against the respondents and that the firm would represent her in the proposed claim.[11]
  3. [13]
    Keeping in mind the nature of the negligence claim pleaded, being a failure to warn case, the parts of the above reports specifically relied upon by the applicant as forming part of the material facts of a decisive character relating to the right of action are as follows: 
    1. (a)
      in respect of the report from Dr Lander dated 5 December 2013:[12]
      1. the third paragraph of the report contains the following words (emphasis added): 

“3D/4D trans perineal ultrasound scan has recently performed on 26th November 2013. This showed a trans obturator tape position in the mid-urethra and kinked on the right side with the right arm extending 2cm above the symphysis pubis to end near the bladder neck. It would appear that this arm has become dislodged from its position where it was inserted. The left arm appears well positioned. The tape is definitely non-functional. There is at least a 4mm gap between the tape and the urethra. The urethra is immobile swinging less than 2mm so at no stage has this tape been able to function. Significant funnelling of the bladder neck occurs with straining.”

  1. (ii)
    the emphasised words were submitted by the applicant to show that appropriately the applicant should have been advised that she was never a suitable candidate for the surgeries (because of her physical architecture[13] - namely, a relatively immobile urethra),[14]
  1. (b)
    in respect of the report from Dr Reid dated 17 March 2014:[15]
    1. the second page of the report contains the following words (emphasis added): 

“1. Mesh pain syndrome: Part of Catherine’s chronic disability seems to relate to a mesh pain syndrome, from an incorrectly positioned midurethral sling. Actual sling type remains uncertain.

  • Given the deviation from expected TOT sling course seen on Dr Lander’s ultrasound, it is difficult to envisage that this could be a Monarc tape. A TOT sling always curves downwards from its puncture point in the obturator foramen. The introduction device allows little variability from this course. Hence, I cannot understand how a TOT sling could track upwards beside the urethra.
  • Conversely, a misdirected Miniarc single puncture sling could potentially be placed in a course that headed superiorly against instead of lateral.

2. Diffuse myalgia: As is common in mesh pain syndromes, Catherine has a diffuse myalgia secondary to myofascial tape irritation.”

  1. (ii)
    the emphasised words were submitted by the applicant to show that there was an identified possible (adverse) outcome of the surgery (namely, mesh pain syndrome), that the applicant says she was not warned about,[16]
  1. (c)
    in respect of the report from Dr Lander dated 27 July 2017:[17]
  1. (i)
     the third paragraph of the report contains the following words (emphasis added):

“The ultrasound scan showed that she was emptying her bladder satisfactorily and the bladder wall thickness was not indicative of any significant obstructed outflow. It also confirmed what we already knew about the urethra being fixed. Funnelling of the bladder neck persisted which is indicative of stress urinary incontinence. An intact trans obturator tape with both arms present was noted indicating that no tape had been excised. As we knew the tape was approximately 3.7 to 4mm from the urethra which was too loose. Granulomatous change which is indicative of inflammation and infection was not present. The tape was too loose to be effective and the immobility of the urethra made it incompatible with a successful tension free vaginal tape procedure. No other abnormality was noted in the pelvic floor.” 

  1. (ii)
     the emphasised words were submitted by the applicant to show that the applicant should have been advised that she was never a suitable candidate for the surgeries (because of her physical architecture)[18] and should have been advised in relation to conservative measures not involving surgery (such as pelvic floor exercises).[19]
  1. [14]
    In terms of the evidence from the applicant as to the material facts of a decisive character relating to the right of action, the applicant’s affidavit makes no direct reference to the three reports referred to above, what she made of the reports, whether and when she provided the reports to various solicitors with whom she consulted, or what advice she sought and received about the reports.
  2. [15]
    Evidence from the applicant’s current solicitors shows: 
    1. (a)
      the reports were provided by the applicant to her current solicitors on 25 October 2017;[20]
    2. (b)
      the applicant’s current solicitors first advised the plaintiff that she had a viable claim and that they would represent her in that claim on about 11 December 2017.  Her current solicitor swears:

“Our assessment was based on the information contained in the material provided to us by the plaintiff on 26 October 2017 which included, inter alia, 

  1. (a)
    a report from Dr Lander dated 5 December 2013 which stated that, on his examination, the tape was definitely non-functional and at no stage had the tape been able to function, there recommending its excision; and 
  2. (b)
    a report from Dr Reid dated 17 March 2014 which stated that the mid-urethral sling was incorrectly positioned and recommended that it be excised.”[21]
  1. [16]
    Having regard to s. 30 LAA, it is the applicant’s position that: 
    1. (a)
      the identified material facts relate to the right of action because the facts concern: 
      1. the fact of the occurrence of negligence (s. 30(1)(a)(i) LAA); 
      2. the fact that the negligence caused personal injury (s. 30(1)(a)(iii) LAA);
      3. the extent to which the personal injury is caused by the negligence (s. 30(1)(a)(v) LAA),
  1. (b)
    the identified material facts were not within the means of knowledge of the applicant before 11 December 2017 (s. 30(1)(c) LAA) because: 
    1. the applicant did not know the identified material facts at that time (the applicant not receiving the identified legal advice until on or about 11 December 2017); and 
    2. as far as the identified material facts were able to be found out by the applicant, the applicant had taken all reasonable steps to find out the facts before that time, 
  2. (c)
    the identified material facts were of a decisive character (s. 30(1)(b) LAA) because a reasonable person knowing those facts and having taken appropriate advice on those facts, would regard those facts as showing:
    1. that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damage sufficient to justify the bringing of an action on the right of action; and 
    2. that the applicant ought, in her own interests and taking her circumstances into account, to bring an action on the right of action. 

The respondents’ position 

  1. [17]
    The respondents’ position is that:
  1. (a)
    what is alleged by the applicant as being a material fact of a decisive character relating to the right of action: 
    1. is not a material fact of a decisive character relating to the right of action at all because what occurred on about 11 December 2017 was simply that there was an introduction of knowledge of the legal effect of facts already known; 
    2. the “facts” in the reports relied upon were not material to the failure to warn negligence case pleaded (and therefore were also not of a decisive character), 
  1. (b)
    the material facts of a decisive character (which are denied) were within the means of knowledge of the applicant before 4 October 2017 because:
    1. the applicant had the reports before 4 October 2017;
    2. the material facts of a decisive character were able to be found out by the applicant, and the applicant had not taken all reasonable steps to find out the facts before that time.

Further background facts – the applicant’s attempts to bring a claim 

  1. [18]
    Annexure 1 hereto is the applicant’s chronology which sets out (in a summary way) the steps taken by the applicant to obtain the necessary expert medical evidence and legal representation in order to bring a claim against the defendants.
  2. [19]
    The following matters are particularly noteworthy from the applicant’s chronology: 
    1. (a)
      the applicant consulted with at least three sets of solicitors prior to obtaining her current representation, all at times when the applicant was (I infer absent any evidence to the contrary) in possession of Dr Lander’s first report and Dr Reid’s report referred to at [13] above;[22]
    2. (b)
      the applicant does not appear to have taken active steps to proceed with a claim between late 2014 and early 2017; it is submitted for the applicant that effectively the applicant had given up on pursuing her claim at that time given the difficulties she had encountered advancing the claim.  

Analysis 

  1. [20]
    I do not consider that the giving or receipt of legal advice constitutes the whole or part of the “material facts” relating to the right of action with which ss. 30 and 31 LAA are concerned. 
  1. [21]
    I consider that to be the effect of the decision on this issue in Do Carmo v Ford Excavations Pty Ltd.[23]  In that case the court had occasion to consider the equivalent of s. 30(1)(a)(i) LAA that refers to “the material facts relating to a right of action include the following – the fact of the occurrence of negligence…”, and whether the existence in law of a right of action is a relevant “material fact”.  The question of construction was if the words “the fact of the occurrence of negligence” refer only to the acts or omissions alleged to constitute the relevant tort or instead refer to legal concepts or causes of action.  
  2. [22]
    Each of Murphy ACJ, Wilson J, Brennan J (who agreed with Dawson J), Deane J (who agreed with Wilson J on this issue) and Dawson J reached the same conclusion on this issue.  As was put by Dawson J at 253: 

“Despite the inherent ambiguity in [the equivalent of s. 30(1)(a)(i) LAA], I think that the reference to ‘the fact of the occurrence of negligence’, when read in context, is clearly enough a reference to facts rather than to a cause of action which arises as a matter of law upon those facts.”

  1. [23]
    I agree.  And further, I consider that the same reasoning must apply to ss. 30(1)(a)(iii) and (v) LAA.  Those subsections are likewise concerned with facts, not legal advice about those facts.  
  2. [24]
    Accordingly, I do not accept that the relevant material fact relating to the right of action can be that articulated by the applicant as set out in [12] above (or [10] above).  
  3. [25]
    That is not conclude though that legal advice is irrelevant.  Legal advice, or other “appropriate” advice, may be relevant to determining whether material facts relating to a right of action are of a decisive character.  Material facts relating to a right of action will obtain a characterisation of being decisive upon satisfaction of s. 30(1)(b) LAA which contemplates the taking of advice.  I will return to that.  
  4. [26]
    I will proceed to consider whether the material fact of a decisive character relating to the right of action that was not within the means of knowledge of the applicant until on or about 11 December 2017 was all or some combination of the information contained in the material provided by the applicant to the applicant’s solicitors on 25 October 2017 and in particular:  
    1. (i)
      a report from Dr Lander dated 5 December 2013; 
    2. (ii)
      a report from Dr Reid dated 17 March 2014; 
    3. (iii)
      a further report from Dr Lander dated 27 July 2017.  
  5. [27]
    I have set out what was submitted to be the relevant parts of the reports and why at [13] above.  
  6. [28]
    It was not immediately obvious to me that those identified parts of the reports disclose material facts relating to the right of action (namely a negligence claim based on a failure to warn), specifically of the type mentioned in ss. 30(1)(a)(i), (iii) or (v) LAA, let alone material facts of a decisive character relating to the right of action. 
  7. [29]
    It may have been expected that what is alleged to be the material facts of a decisive character relating to the right of action would usually be contained in the statement of claim.  Although that may not always be the case because the relevant fact is not required to be an essential element of the right of action to be material;[24] for example, the fact might properly, in a pleading sense, be considered to be evidence to prove an essential element of a right of action,[25] rather than a material fact required to be pleaded.  Here, the statement of claim makes no express reference to the plaintiff having an immobile urethra, or mesh pain syndrome being a known complication of the surgeries performed.  There is reference in [8(c)] of the statement of claim to the plaintiff not being advised about complications with the relevant tape.  There is nothing in the statement of claim that suggests that the plaintiff’s “architecture” made the surgeries inadvisable.  
  8. [30]
    However, the allegations of breach of duty at [22] of the statement of claim do appear wide enough to capture a case (presently not properly particularised) that, (1) the plaintiff should have been given advice about the desirability of the surgeries in light of her immobile urethra, and (2) the plaintiff should have been given advice about the possibility of mesh pain syndrome arising as a consequence of the surgeries.  
  9. [31]
    Accordingly, it does appear to me that the material facts set out in [26] above are facts that may need to be established to show the negligent character of the defendants’ alleged negligent failure to warn.[26]
  10. [32]
    Further, I take into account Adrian Barakat’s evidence at [37] of his affidavit [CFI 22] in relation to the first two reports.  I note that whilst Mr Barakat does not specifically identify the parts of the first two reports set out at [13] above, Mr Barakat was not required for cross-examination.  
  11. [33]
    On the basis identified in [30] to [32] above, I find that the first two reports disclose material facts of a decisive character relating to the relevant right of action.  The third report relevantly adds nothing to the first report and I will deal with it shortly.  But to obtain their decisive character, I find that a reasonable person knowing the identified content of the first two reports would need to have taken appropriate advice in order to regard those facts as showing the matters in ss. 30(1)(b)(i) and (ii) LAA.   
  12. [34]
    In that regard, in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 437, Macrossan CJ said (authorities omitted, my emphasis): 

“The statutory scheme constituted by ss 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but he is nevertheless not excluded from the possibility of obtaining an extension of the limitation period if he is not yet (and even if he had made reasonable enquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge or constructive knowledge of facts is belatedly gained which puts him over the borderline into a position where for the first time he has reasonable prospects and should in his own interests commence his proceedings he may be entitled to his extension …”

  1. [35]
    See also Pikrt v Hagemeyer Brands Australia Pty Ltd.[27] 
  2. [36]
    As I have identified above, there are three reports relied upon by the applicant: two by Dr Lander (dated 5 December 2013 and 27 July 2017) and one by Dr Reid (dated 17 March 2014).  As can be seen in [13] above, the relevant content of Dr Lander’s two reports is virtually identical.  I do not consider that the second Dr Lander report  relevantly contains any material fact relating to the relevant right of action not already known to the applicant as a consequence of the first report.  
  1. [37]
    That leads me to conclude that the third report does not in fact contain any material fact of a decisive character relating to a right of action that is contemplated by ss. 30 and 31 LAA.  The repetition of an already existing and known material fact of a decisive character relating to a right of action is not with what those sections are properly concerned.
  2. [38]
    In a like manner, I note that strictly if the first report discloses material facts of a decisive character relating to the relevant right of action that would satisfy s. 30(1)(b) LAA, then the second report becomes irrelevant for the purpose of s. 31(2) LAA.  That is because, as was explained in Berg v Kruger Enterprises Ltd,[28] once the test of decisiveness in s. 30(1)(b) LAA is satisfied, the obligation to commence proceedings runs (because at that time the plaintiff knows they have a worthwhile cause of action).
  1. [39]
    The next question then (s. 31(2)(a) LAA) is whether the material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant prior to 4 October 2017.
  2. [40]
    This enquiry directs attention to s. 30(1)(c) LAA.
  3. [41]
    I start with the position that the “fact” referred to in s. 30(1)(c) LAA is the fact that satisfies s. 30(1)(b) LAA.  I think that is plain on the proper construction of the statute and is consistent with the decision in State of Queensland v Stephenson [2006] 226 CLR 197 at 208 [29]-[30], per Gummow, Hayne and Crennan JJ.
  4. [42]
    I find that that fact was not within the knowledge of the applicant (subsection (i)) – the applicant in fact not obtaining the appropriate advice that gave the material facts their decisive character until 11 December 2017.  
  5. [43]
    The question to consider then under subsection (ii) is: did the applicant take all reasonable steps to find out the fact before that time?  Given the actual reports were already in her possession, this question directs attention to whether the applicant took  all reasonable steps to obtain the advice necessary to give the material facts in the reports their decisive character.  This assessment is to be carried out with reference to the reasonable steps a person in the position of the applicant should have taken.[29]
  1. [44]
    I refer to the history of the applicant attempting to pursue her claim, including as set out in the applicant’s chronology (see [18] above).  Whilst I particularly focus on the time period from 17 March 2014 to 4 October 2017, I have regard to the whole of the circumstances as informing me about the reasonable steps the applicant should have taken during that identified time period.
  2. [45]
    The applicant was in possession of the two relevant reports by about 17 March 2014, and the applicant had the opportunity to take legal advice arising from those two reports from more than one firm after 17 March 2014 (see [19](a) above).  As set out in [14] above, the applicant’s affidavit makes no direct reference to the reports, what she made of the reports, whether and when she provided the reports to various solicitors with whom she consulted, or what advice she sought and received about the reports.  That is a significant lacuna in the applicant’s evidence.  
  3. [46]
    Such evidence may have better informed the applicant’s lack of action during the period September 2014 to 2017, when further legal advice (or other appropriate advice) could have been sought, but was not. 
  4. [47]
    Whilst I acknowledge that the applicant did take significant (and appropriate) steps to attempt to obtain legal representation up to September 2014 for the purpose of bringing a claim (even if I do not know what she actually did with the relevant reports), and that she must have been very discouraged by the outcomes of her efforts in that respect, in circumstances where the applicant was firmly personally of the view that a wrong had been done to her by the respondents that had caused her serious injury, and she knew that the limitation period for bringing a claim against the respondents had already expired (having been put on notice of the limitation period by a solicitor who had been acting for her) it was not reasonable, even for the applicant bearing in mind her personal circumstances, to allow more than two further years to pass by (2015-6), not attempting to obtain the advice needed to justify a claim being brought.   
  1. [48]
    I find that the applicant, taking into account her personal circumstances, did not take all reasonable steps to find out the relevant material facts of a decisive character before 4 October 2017. Thus, s 30(1)(c)(ii) LAA is not satisfied.  I consider therefore that the material facts of a decisive character relating to a right of action were within the means of knowledge of the applicant prior to 4 October 2017.

Conclusion – are the requirements of ss. 31(2)(a) and (b) LAA satisfied? 

  1. [49]
    In summary I find in relation to the requirements of ss. 31(2)(a) and (b) LAA that: 
    1. (a)
      the report of Dr Lander dated 5 December 2013 and the report of Dr Reid dated 17 March 2014 disclose material facts of a decisive character relating to the relevant right of action (as set out in [13](a)(i) and [13](b)(i) above); 
    2. (b)
      those facts were not actually known to the applicant as at 4 October 2017; 
    3. (c)
      those facts were able to be found out by the applicant before 4 October 2017; 
    4. (d)
      the applicant did not take all reasonable steps to find out those facts before 4 October 2017; 
    5. (e)
      accordingly, the material facts of a decisive nature relating to the relevant right of action were within the means of knowledge of the applicant before 4 October 2017; 
    6. (f)
      there is evidence to establish the right of action (negligence claim, failure to warn case) apart from a defence founded on the expiration of a period of limitation; 
    7. (g)
      as ss. 31(2)(a) and (b) LAA are not satisfied, I have no discretion to order an extension of the relevant limitation period.  
  2. [50]
    In case I am wrong in that conclusion, I will proceed to consider the issue of prejudice to the defendants and the general discretion that arises under s. 31(2) LAA.    

Prejudice to the defendants 

The alleged prejudice 

  1. [51]
    In considering the issue of prejudice to the defendants that may be suffered if the application is granted, it is useful to start with a consideration of what the defendants knew (at relevant times) of the negligence action now brought against them.  
  2. [52]
    The surgeries were performed in 2011.  The applicant swears in her affidavit filed 19 May 2022 at [93] that for the two years following the surgeries she continued to consult the first defendant about her pain.  
  3. [53]
    On about 23 March 2012 the applicant delivered a section 9A Initial Notice to the Royal Brisbane and Women’s Hospital.  That notice concerned the second surgery only and an allegation that during that surgery there was an accidental injury to the applicant’s urethra requiring a remedial operation.  The notice did not concern the first surgery, nor any alleged failure to warn type case. 
  4. [54]
    A Part 1 Notice of Claim was delivered on or about 18 June 2012, however it was non-compliant as it was not accompanied by a medical report.  Again, it concerned the second surgery only and an allegation that during that surgery there was an accidental injury to the applicant’s urethra.  The applicant was put on notice of the non-compliance of the notice by letter dated 4 July 2012. 
  5. [55]
    The defendants had no further contact from the applicant or her representatives until 4 October 2018.  The defendants’ solicitors’ files were closed in the interim.  
  6. [56]
    The statement of claim in this proceeding was filed in the Supreme Court of New South Wales on 4 October 2018.  A summary of the pleaded negligence claim is set out at [6] above.  The second respondent’s solicitors wrote to the applicant’s solicitors on 17 May 2019 and 31 May 2019 regarding the expired limitation period.  On 1 July 2019 the proceeding was transferred to the Supreme Court of Queensland.  
  7. [57]
    Having been served with proceeding, the first respondent’s then solicitors proceeded to obtain a statement from the first defendant dated 30 June 2019.  Privilege has not been waived over the statement, or any part of it.  
  8. [58]
    There is unchallenged evidence that when the statement was taken the first defendant did not have access to the second defendant’s records, including in respect of the two surgeries.[30]  There is no evidence before me as to any relevant records personal to the first defendant being available to the first defendant at the time of the taking of the first defendant’s statement. 
  9. [59]
    I infer that in taking the first defendant’s statement, the first defendant would have been asked to address the allegations made in the filed statement of claim.  It was not for the first defendant to guess at some other claim that might be made, particularly given the time that had elapsed since the two surgeries and any other claim being out of time.  Because the first defendant’s statement is not available to me on this application, I do not know whether in June 2019: 
    1. (a)
      the first defendant had any recollection of the advice he provided to the applicant before each surgery; 
    2. (b)
      the first defendant had no recollection of the advice he provided to the applicant before each surgery but was able to recall details of his usual practice of the advice provided to like patients; 
    3. (c)
      the first defendant had no recollection of the advice he provided to the applicant before each surgery and no recollection of the details of his usual practice of the advice provided to like patients.
  10. [60]
    On 6 July 2020 the respondents’ solicitors wrote to the applicant’s solicitors enquiring when the applicant intended to make the application to extend time under the LAA.  No response was received.   
  1. [61]
    On 3 December 2021 the applicant’s solicitors delivered a Part 1 Notice of Claim (again non-compliant) to the respondents.  Insofar as the notice dealt with the failure to warn case, it largely contained the detail already contained in the existing pleading.  Some additional detail about dates of consultations and risks not informed about were contained in answer to question 15.
  2. [62]
    A compliant Part 1 Notice of Claim, accompanied by the medical report of Dr Korda dated 19 October 2020, was delivered to the respondents on 16 December 2021.  It appears that Dr Korda, in preparing that report, had available to him the second defendant’s records, but not any personal records of the first defendant.  He opined, having regard to the second defendant’s records from the consultation at the time the first surgery was recommended, that the “risks of surgery were not clearly explained in the notes”.  Nothing was said by Dr Korda in that report about the explanation of risks regarding the second surgery.  Dr Korda opined that the (first) surgery should only have been recommended after conservative management had failed.  
  3. [63]
    The application to extend time under the LAA was not filed until 15 March 2022. 
  4. [64]
    On about 21 March 2022 the first defendant’s solicitors became aware that there was a potential problem obtaining instructions from the first defendant due to capacity issues.  Timely enquiries then made by the first defendant’s solicitors led to:  
    1. (a)
      the discovery that the first defendant had been assessed by a geriatrician, Dr Mikli, on 22 April 2021 (for reasons apparently unrelated to the proceeding) wherein the first defendant had received a diagnosis of mild cognitive impairment; 
    2. (b)
      the obtaining of updated reports from Dr Mikli dated 27 May 2022 and 6 June 2022 wherein the first defendant received a diagnosis of early dementia (probable Alzheimer’s disease) and the first defendant’s capacity to actively participate in the proceeding was questioned.  
  5. [65]
    No objection to the contents of Dr Mikli’s reports was made,[31] and Dr Mikli was not required for cross-examination.  It is, of course, a matter for the court to determine the capacity of the first defendant to give evidence at the appropriate time, although the court may be assisted in that task by expert evidence.  But I am prepared to accept, for the purpose of this application, based on Dr Mikli’s reports that: 
    1. (a)
      the first defendant’s early dementia will progress, albeit slowly, causing his condition to decline; 
    2. (b)
      the first defendant is likely to be unable to reliably recall the content of any of the consultations he had with the applicant between September 2010 and November 2011; 
    3. (c)
      the first defendant is likely to be unable to reliably recall his “usual practice” in respect of making recommendations and providing information about the type of surgeries performed on the applicant; 
    4. (d)
      the first defendant is unlikely to be assisted in his recollection by reviewing past medical records;  
    5. (e)
      there is likely to be a real issue about the first defendant’s capacity to give evidence when that time comes. 
  6. [66]
    It is the respondents’ position that prejudice would be suffered by them if the sought extension of time were granted. The respondents point to: 
    1. (a)
      “the inevitable depletion in the quality of the evidence due to the passage of time”; and 
    2. (b)
      the specific issue of the first defendant’s lack of capacity to provide instructions and incompetency to participate in the giving of evidence. 
  7. [67]
    It is the applicant’s position that: 
    1. (a)
      a diligent defendant faced with the timely complaint about the second surgery, should have taken steps to prepare the first defendant for the possibility of a claim within the limitation period; 
    2. (b)
      the first defendant should have taken steps to better preserve his evidence at least upon the diagnosis of mild cognitive impairment in April 2021; 
    3. (c)
      there is no evidence that a fair trial cannot proceed on the documentary evidence; insofar as there has been no disclosure of the statement of the first defendant taken in 2019 or other documentary records belonging to the first defendant, an adverse Jones v Dunkel inference should be drawn that nothing the first defendant can give evidence about would be helpful to his case; 
    4. (d)
      any prejudice to the respondents from the first defendant’s declining status does not rise to the level that would make a trial inherently unfair; 
    5. (e)
      the issues in the trial will almost entirely be decided on objective evidence and not on the memories of potential witnesses or the first defendant.

Onus 

[68] In respect of the issue of prejudice, whilst there is an evidentiary onus on the respondents to raise any consideration telling against the exercise of the discretion in the applicant’s favour, the onus of establishing that an extension of time should be granted at all times lies with the applicant.  

Analysis 

  1. [69]
    The respondents have placed into evidence sufficient facts to lead me to conclude that actual prejudice, and the possibility of other prejudice, by reason of the effluxion of time, will be suffered by the respondents if an extension of time is granted.[32]
  2. [70]
    In this failure to warn type case, a crucial issue must be what was the content of the conversations between the applicant and the first respondent at the relevant consultations, pre-surgeries.
  3. [71]
    As was said by Keane JA (as his Honour then was) in NF v State of Queensland[33] (emphasis added, footnotes omitted): 

“There are two further points which may be made here by reference to the decision in Brisbane South. The first is that it was important in that case, as is apparent from the joint reasons of Toohey and Gummow JJ, that the principal issue in the case turned upon the terms of a conversation between the plaintiff and a medical practitioner employed by the defendant in relation to the risks of a proposed medical procedure. Their Honours drew attention to the contrast between such a case, where the lapse of time made a fair trial a virtual impossibility, and a case such as Kosky v Trustees of Sisters of Charity, where the evidence bearing upon the major issues in the case was largely documentary so that there was no prejudice by reason of the lapse of time to the possibility of a fair trial on the merits.”

  1. [72]
    Here, not only is the effluxion of time likely to adversely affect (at least to some extent) the first respondent’s recollection of the relevant conversations (which are now over ten years old), but the circumstance of the first respondent’s mental decline makes the position of the respondents even more difficult.  I consider, therefore, that a fair trial is at least improbable.  
  2. [73]
    In respect of the applicant’s submissions, summarised at [67] above, I find as follows: 
    1. (a)
      I agree that a diligent defendant faced with the timely complaint about the second surgery, should have taken steps to prepare the first defendant for the possibility of a claim within the limitation period.  However, the claim that needed to be prepared for was a claim based on the allegation that during the  second surgery the first defendant had negligently cut the applicant’s urethra.  No other claim had been foreshadowed or needed to be prepared for at that time.  
  1. (b)
    I do not agree that the first defendant should have taken steps to better preserve his evidence at least upon the diagnosis of mild cognitive impairment in April 2021.  By that time, a statement had been taken from the first defendant in 2019.  The only negligence claim that had been brought at the time was the failure to warn claim.  It can be inferred that the statement taken related to that claim.  There is no basis to assume that statement is anything other than comprehensive.  There is no evidence to support a proposition that further steps taken in 2021 would have better preserved the first defendant’s evidence than had already been preserved.  
  2. (c)
    In a failure to warn type negligence claim where conservations are relied upon to evidence the failure to warn, evidence of the conversations or of usual practice of conversations with like patients concerning risk are likely to assume importance. That is likely to be so in this case. The documentary record of the second defendant presently appears to be restricted to standard hospital consent forms for the surgeries, which do not refer to the relevant conversations in any detail.  There does not appear to be any contemporaneous record of the relevant conversations.  I consider that there is a real risk that a fair trial will not be able to be achieved where the applicant intends to give evidence as to conversations with the first defendant and the first defendant’s ability to give evidence of those conversations (or at least his usual practice in such conversations given a recollection of the actual conversations is unlikely) is impaired.  The documentary record available does not appear to me to be able to address that likely unfairness.  I am not prepared to draw a Jones v Dunkel inference against the respondents as a consequence of not putting the first defendant’s statement into evidence in this application.  The statement is privileged.  There is no obligation on the respondents to waive privilege in the statement.  The failure to have the first respondent give evidence in this application is explained by reference to Dr Mikli’s report.     
  3. (d)
    I am satisfied that any prejudice to the respondents from the first defendant’s declining status does rise to the level that would make a trial inherently unfair for the reasons set out in the preceding subparagraph.  
  4. (e)
    I do not agree that the issues in the trial will almost entirely be decided on objective evidence and not on the memories of potential witnesses or the first defendant.  It is a failure to warn case.  The plaintiff intends to prove the alleged failure to warn by giving evidence as to conversations had with the first defendant.  The memories of the first defendant of those conversations (or of his usual practice in such conversations with like patients) are important.

The remaining discretion 

  1. [74]
    It remains to consider the general discretion, namely that the discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by doing so.[34]
  2. [75]
    In addition to all of the matters I have already canvassed above, which I again have regard to for purpose of considering the general discretion, I further have regard to: 
    1. (a)
      the context of the rationales for the existence of limitation periods,[35] but tempered by the existence of the discretion given in s. 31(2) LAA which acts as an exception to the general rule; 
    2. (b)
      that the exception is in the nature of a beneficial provision and should be construed and applied accordingly; 
    3. (c)
      the delay in the making of this application which did not appear to be adequately explained by the applicant (although I would accord this only a small amount of weight given it is not clear to me whether the fault for that delay lies with the applicant personally or her representatives); 
    4. (d)
      that the failure to grant an extension of time will deprive the applicant of the right to pursue the lost action.   
  3. [76]
    Even if I had concluded that the general discretion arose under s. 31(2) LAA, given my findings as to prejudice above, I would not have been prepared to exercise my discretion in favour of granting the application. 

Conclusion 

  1. [77]
    The application is dismissed.  Costs should follow the event; that is, the applicant pay the respondents’ costs of the application.

Neutze v Clarke [2022] QSC 155

Neutze v Clarke & Anor

BS 7382 of 2019

Appendix

Index

1 Applicant’s Chronology 

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane

NUMBER: 7382/19

Plaintiff: Catherine Neutze

AND

First Defendant: Professor Barton Clarke

AND

Second Defendant: State of Queensland

APPLICANT'S CHRONOLOGY

DATE

EVENT

REFERENCE

15 December 1965

Date of birth of Catherine Neutze (Mrs

Neutze)

Neutze [CFI 20], [5]

16 February 2011

Mrs Neutze consults the first defendant (Dr Clarke) in his public rooms at the Urogynecology Outpatients Department, Royal Brisbane and Women's Hospital (Hospital) when lie put her on a waiting list for vaginal tape surgery for management of peisisting urinary incontinence

Neutze [CFI 20], [34]-

[35]

23 May 2011

Mrs Neutze undergoes transobturator tape (TOT) surgery under Dr Clarke at the hospital

Neutze [CFI 20], [50]

14 November

2011

Dr Clarke performs a surgical division of the tape at the hospital when as a result of surgical misadventure he cuts the urethra

Neutze [CFI 20], [87]-

[89]

14 November 2011 to about mid 2013

Mrs Neutze consults Dr Clarke in relation to lower abdominal pain when he told her that he did not know what was wrong, she was the only person that experienced this, it was in her head and he would refer her to a psychiatrist

Neutze [CFI 20], [92]-

[94]

27 November

2013

Mrs Neutze, in company with her’ husband, consults obstetrician, Lewis Lander (Dr Lander) when he advises Mrs Neutze that the tape was in the wrong position, absolutely non-functional and useless, but he would not speculate as to how the tape ended

Neutze [CFI 20],

[102]-[110]; Swift

[CFI 21], [27]-[28], ex ‘RS-1’

CHRONOLOGY

Filed on behalf of the Plaintiff

DATE

EVENT

REFERENCE

in that position, and whether her persisting lower abdominal pain was associated with the tape was anyone’s guess

23 March 2012

Mrs Neutze serves a s9A Notice on the Hospital with regard to the surgical misadventure under Dr Clarke on 14 November 2011

Neutze [CFI 20],

[194]-[199]

18 June 2012

Mrs Neutze gives Queensland Health (for the Hospital) a Notice of Claim with respect to the procedure performed on 14 November 2011

Neutze [CFI], [216]-

[217]

Circa 4 July 2012

Solicitors for Queensland Health advise Mis Neutze that it will not accept the Notice of Claim unless it was supported by a medical report

Neutze [CFI 20],

[219]-[220]

27 November

2012

Mrs Neutze consults expert urologist, Ross Snow for medicolegal assessment with respect to a claim against Dr Clarke arising out of the surgery performed in November 2011

Neutze [CFI 20],

[222]-[226]

Mid to late 2012 September 2013

Mrs Neutze looks online into the safety issues relating to sui‘gical pelvic mesh devices

Neutze [CFI 20], [233]

22 January 2013

Mrs Neutze instructs solicitor, Peter Deed not to proceed with the claim against Dr Clarke following Mr Deed's advice that she had no hope in a claim against him arising out the surgery performed in November 2011

Neutze [CFI 20],

[225]-[231], ex ‘CN-

1’, P46

3 October 2013

Mrs Neutze consults Dr Lander when she asks whether he would do a report for her in ielation to the surgery performed on 23 May 2011 and Dr Lander declined to do so

Neutze [CFI 20],

[250]-[253]

October 2013

Mrs Neutze gives solicitor, Peter Deed research papers, bulletins and other documentation that she had found indicating the use of surgical mesh may have not have been appropriate taking into account her prior medical history

Neutze [CFI 20],

[241]-[244]

23 October 2013

Mr Deed advises Mr Neutze that without a supporting expert report her claim against Dr Claike with regard to mesh surgery would

Neutze [CFI 20],

[255]-[256], ex ‘CN-

1’, pp 48-49

DATE

EVENT

REFERENCE

fail although lie would continue tiying to locate a doctor willing to support a claim

2014

Mrs Neutze consults Shine Lawyers in relation to making a claim against Dr Clarke following calls for women affected by vaginal mesh to join a proposed class action when she was told that Shine Lawyers were not handling individual cases, were awaiting the outcome in associated litigation, and would not take her case on a ‘no win/no fee’ basis

Neutze [CFI 20],

[268]-[271]

17 March 2014

Mrs Neutze, with her husband, consults Dr Reid when Dr Lander was in attendance, when advised that removal of the accessible portion of tape would likely alleviate tendeiness although there was absolutely no guarantee of benefit and additional tape removal attempts may be needed. However, Dr Reid ducked the issue and would not provide a supporting report for a claim against Dr Clarke

Neutze [CFI 20],

[276]-[279]; Vidic

[CFI 23], ex ‘BV-2’,

pp 36-37; Adrian

Barakat [CFI 22],

[16]-[17], ex ‘AB-1’,

pp 15-17

25 March 2014

Mr Deed confirms to Mrs Neutze that lie could not act for her in a claim against Dr Clarke without a supporting medicolegal report

Neutze [CFI 20],

[281]-[282], ex ‘CN-

1’, p 59

2014

Mrs Neutze consults solicitors, Geiatd Malouf & Partners, Parianiatta, NSW, with a view to making a claim against Dr Clarke arising out of the implant surgery performed in May 2011

Neutze [CFI 20],

[306]-[307]

September 2014

Mr Malouf informs Mrs Neutze that he wasn’t interested in taking on a claim against Dr Clarlte

Neutze [CFI 20],

[317]-[321]

Circa 2017

Mrs Neutze consults the health law team, Catherine Henry Lawyers, Newcastle, NSW in relation to making a claim against Dr Clarke when she was advised that they would not take the case

Neutze [CFI 20],

[322]-[323]

5 October 2017

Mrs Neutze consults Tony Barakat at AJB Stevens Lawyers, Sydney, NSW when advised he would look at talking on a case against Dr’ Clarke in relation to the implant surgery performed May 2011 on a ‘no win/no fee’ basis

Neutze [CFI 20],

[342]; Tony Barakat

[CFI 24], [6]-[9]

DATE

EVENT

REFERENCE

26 October 2017

Mrs Neutze gives AJB Stevens material and correspondence received from:

  1. (a)
    Dr Lander, specifically a report dated 27 July 2017 reporting the tape was too loose to be effective and the immobility of her urethra meant it was incompatible with a successful tape procedure [ex ‘AB-1’, p2];

Adrian Barakat [CFI 22], [16]-[17], ex ‘AB-

1’, pp 1-22

  1. (b)
    Prof Reid, specifically a report dated 17 March 2014 reporting that part of her chronic disability ‘seems to relate to a mesh pain syndrome, from an incorrectly positioned mid - uiethral sling’, and ‘as is common in mesh pain syndromes, Catherine has a diffuse myalgia secondary to myofascial tape irritation [ex ‘AB-1, pp15-17] and a report dated 9 May 2014 confirming that the sling was misdirected [ex ‘AB-1’, p18]

11 December 2017

AJB Stevens determine that the information provided by Mrs Neutze was sufficient for them to advise her on prospects and decide to take on a case against Dr Clarke arising out of the surgery in May and November 2011 and advise her in relation to the direction the matter should take

Neutze [CFI 20],

[350];

Adrian Barakat [CFI 22], [18]; Tony Baiakat [CFI 24],

[12]-[14]

16 March 2018

Mrs Neutze signs a cost agreement with AJB Stevens

Adrian Barakat [CFI 22], [20]

22 August 2018

Dr Lander releases his patient records to AJB Stevens

Tony Barakat [CFI 22], [27]

4 October 2018

AJB Stevens file a statement of claim in the Supreme Court of NSW starting action on behalf of Mrs Neutze against Dr Clarke and the hospital

Adrian Barakat [CFI 22], [35]-[36]

7 June 2019

AJB Stevens give Dr Clarke and the hospital a proposed amended statement of claim including additional allegations of breach of duty and seek consent to Mrs Neutze filing the amended statement of claim

Sinclair [CFI 26], ex ‘NRS-16’, pp129-39

1 July 2019

The Supreme Court of NSW makes orders cross-vesting the matter to the Supreme Court of Queensland for hearing and determination

Adrian Barakat [CFI 22], [105]-[106], ex

‘AB-1’, pp 287-88

(orders)

Footnotes

[1]    Statement of claim, [5].

[2]    Statement of claim, [4(d)].

[3]    The first defendant has since retired.

[4]    Statement of claim, [6] and [4(a)].

[5]    Statement of claim, [7], [9]-[14].

[6]    Statement of claim, [8].

[7]    Statement of claim, [11]-[12], [15]-[17].

[8]    Statement of claim, [22].

[9]  I take this to be a reference to [8(c)] and [8(d)] of the statement of claim which is the only part of the pleading in which it is alleged that certain (identified) information was not provided to the plaintiff.

[10]   Statement of claim, [23].

[11]   See affidavit of Adrian Barakat [CFI 22], [37]; and applicant’s written outline of submissions, [9].

[12]   Commencing at exhibit page 20 of the affidavit of Adrian Barakat [CFI 22].

[13]   Transcript 1 page 31 at lines 43-44.

[14]   Transcript 1 page 34 at lines 28-30.

[15]   Commencing at exhibit page 15 of the affidavit of Adrian Barakat [CFI 22].

[16]   Transcript 1 page 32 at line 45 to page 33 at line 16.

[17]   Commencing at exhibit page 2 of the affidavit of Adrian Barakat [CFI 22].

[18]   Transcript 1 page 31 at lines 43-44.

[19]   Transcript 1 page 31 at lines 30-34. See also more generally transcript 1 page 32 at lines 1-26.

[20]   Affidavit of Tony Barakat [CFI 24], [11].

[21]   Affidavit of Adrian Barakat [CFI 22], [37].

[22]   The three sets of solicitors being: Peter Deed of Cranston McEachern; Gerard Malouf & Partners; Catherine    Henry Lawyers.

[23]   [1984] 154 CLR 234.

[24] Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 471 per Connolly J with whom the other members of the Court agreed.

[25]   See Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [45], per McMurdo J (as he was then).

[26] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 254 per Dawson J.

[27]   [2006] QCA 112.

[28]   [1990] 2 Qd R 301. By reference to the decisions in Sugden v Crawford (16 October 1987, unreported),   Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 and Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325.

[29] NF v State of Queensland [2005] QCA 110 at [29] per Keane JA (as his Honour then was).

[30]   [16(a)], affidavit of Sinclair filed 13 June 2022 [CFI 32].

[31]  I did not allow an objection by the applicant as to the receipt into evidence of Dr Mikli’s report.   Submissions were made on behalf of the applicant as to the weight to be given to certain aspects of Dr Mikli’s opinion.

[32] Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793 per Gowans J, endorsed in Campbell    v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474; cited with approval in Brisbane South Regional Health Authority (1996) 186 CLR 541, per Toohey and Gummow JJ at 547.

[33]   [2005] QCA 110 at [51].

[34] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, per Dawson J.

[35]   See, in particular, the four broad rationales referred to in Brisbane South Regional Health Authority v Taylor, supra, 552-3 per McHugh J.

Close

Editorial Notes

  • Published Case Name:

    Neutze v Clarke & Anor

  • Shortened Case Name:

    Neutze v Clarke

  • MNC:

    [2022] QSC 155

  • Court:

    QSC

  • Judge(s):

    Hindman J

  • Date:

    25 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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