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Collins v Metro North Hospital and Health Service[2025] QSC 225

Collins v Metro North Hospital and Health Service[2025] QSC 225

SUPREME COURT OF QUEENSLAND

CITATION:

Collins v Metro North Hospital and Health Service [2025] QSC 225

KENNETH CHARLES COLLINS

(plaintiff)

v

METRO NORTH HOSPITAL AND HEALTH SERVICE

(defendant)

FILE NO/S:

BS 3437 of 2023

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

10 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2025

JUDGE:

Copley J

ORDERS:

On the defendant’s application the Court orders:

  1. Paragraphs 11A – 11L, 18 – 22, 31E – 31G and 98(l) be struck out of the Seventh Amended Statement of Claim.
  2. The time stipulated in order 5 of Freeburn J on 9 May 2025 in which the defendant is not required to plead to the Seventh Amended Statement of Claim is extended from 19 June 2025 until 16 July 2025.
  3. The defendant is not required to plead in response to the Seventh Amended Statement of Claim.
  4. By 4:00pm on 25 September 2025 the plaintiff file and serve an Eighth Amended Statement of Claim in consequence of order 1.
  5. The defendant file and serve an amended defence to the Eighth Amended Statement of Claim within 28 days of service of the Eighth Amended Statement of Claim.
  6. Any further amendment of the Eighth Amended Statement of Claim must first be served on the defendant, the defendant is to advise the plaintiff within 14 days of service of any objections it may have to the further amendment of the Eighth Amended Statement of Claim and in that event the plaintiff is to file an application for leave to file the proposed further amendment of the Eighth Amended Statement of Claim.
  7. The plaintiff is to pay the defendant’s costs of the defendant’s application on the standard basis.

On the plaintiff’s application the Court orders:

  1. The plaintiff’s application is refused.
  2. The plaintiff is to pay the defendant’s costs of the plaintiff’s application on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT –  DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the defendant applies to strike out various paragraphs of the plaintiff’s seventh amended statement of claim – whether the impugned paragraphs of the plaintiff’s seventh amended statement of claim disclosed any reasonable cause of action

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHER CASES AND MATTERS – where the plaintiff applies to set aside separate orders of the Supreme Court striking out various paragraphs of the plaintiff’s statement of claim – where the plaintiff alleges the previous orders of the Supreme Court were obtained by fraud – whether the plaintiff has established fraud – whether the plaintiff has identified any newly established facts to warrant the setting aside of previous strike-out orders

Limitations of Actions Act 1973 (Qld) s 11

Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 161, r 171, r 155, r 323, r 367, r 376, r 385, r 553, r 547, r 548, r 667, r 668

Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82

Borsato v Campbell & Ors [2006] QSC 191

Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd and Ors [2022] QSC 112

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Lee v Abedian [2017] 1 Qd R 549

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2015] 1 Qd R 476

Partram Developments Pty Ltd v The Registrar of Cooperative Housing Societies [2025] QCA 13

Tabet v Gett (2010) 240 CLR 537

COUNSEL:

The plaintiff appeared on his own behalf

R J Douglas KC & C Pincott

SOLICITORS:

The plaintiff appeared on his own behalf

Crown Law for the defendant

  1. [1]
    The parties have made separate applications for various interlocutory orders in relation to the plaintiff’s claim commenced on 20 March 2023.  In part the claim relates to medical services provided by the defendant. 
  2. [2]
    The defendant’s application, filed on 21 July 2025, concerns aspects of the Seventh Amended Statement of Claim which was filed on 16 May 2025.  Primarily, the defendant seeks an order striking out various paragraphs in the Seventh Amended Statement of Claim, pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”) alternatively, particulars in relation to some paragraphs.
  3. [3]
    The plaintiff’s application, filed on 23 July 2025, primarily seeks orders setting aside orders made by Freeburn J on 9 December 2024 and by Sullivan J on 28 August 2023.  The orders are sought pursuant to r 668 or r 667(2)(b) of the UCPR.
  4. [4]
    These reasons deal with both applications.  It is convenient to deal with the defendant’s application first.

Defendant’s application

  1. [5]
    The defendant has applied for orders that:
    1. Pursuant to r 171 of the UCPR, the following be struck out - paragraphs 11A – 11L, 18 – 22, 31E – 31G, 98, and the last unnumbered paragraph, in the Seventh Amended Statement of Claim.
    2. Pursuant to r 161 of the UCPR, and alternatively to striking out paragraph 98 and the last unnumbered paragraph, pursuant to r 161 of the UCPR the plaintiff provide written further and better particulars of his alleged loss and damage by giving to the defendant particulars of: (a) the precise injury (whether physical or psychiatric) alleged to have been caused by each breach of duty respectively pleaded in paragraph 98 of the Seventh Amended Statement of Claim, as required by r 149 of the UCPR; and (b) the detailed calculation of the loss and damage claimed, in respect of the sums pleaded in the last unnumbered paragraph of the Seventh Amended Statement of Claim, as required by r 155 of the UCPR.
    3. The plaintiff file and serve an Eighth Amended Statement of Claim and any particulars in consequence of orders (i) and (ii).
    4. Within 28 days of service on it of such Eighth Amended Statement of Claim and any particulars ordered, the defendant file and serve an amended defence to the Eighth Amended Statement of Claim.
    5. The plaintiff not further amend the Eighth Amended Statement of Claim, except by way of application for leave of the Court to do so, upon application filed and served on the defendant on not less than 10 days’ notice of application hearing.

Striking out

  1. [6]
    Rule 171 provides:

“171  Striking out pleadings

  1. This rule applies if a pleading or part of a pleading—
  1. discloses no reasonable cause of action or defence; or
  1. has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. is unnecessary or scandalous; or
  1. is frivolous or vexatious; or
  1. is otherwise an abuse of the process of the court.
  1. The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
  1. On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”
  1. [7]
    The power to strike out some part of a pleading should be exercised only in a clear case and great care must be taken to be sure a plaintiff is not wrongly deprived of an opportunity to present a case at trial.[1]
  2. [8]
    The present claim is a claim by a litigant in person and it is therefore not to be expected that the pleadings will be drafted with the precision expected of a trained lawyer.  However, if it is reasonably plain that a reasonable cause of action is not disclosed by the pleading the Court ought not to refrain from making an order striking the pleading out.
  3. [9]
    Summaries of the impugned pleadings in the Seventh Amended Statement of Claim appear under each heading below corresponding to the pleading concerned.
  4. [10]
    Prior to considering the particular paragraphs sought to be struck out it assists to understand the context in which they appear.  Paragraphs 1-11 of the Seventh Amended Statement of Claim plead that on 5 June 2019 the plaintiff was diagnosed with a form of cancer following a biopsy performed at a hospital operated by the defendant.  Two treatments were recommended.  One commenced on 5 July 2019.  The other, chemotherapy, was deferred by the plaintiff as he desired the defendant to provide him with further information about chemotherapy before deciding whether to consent to it.  The plaintiff asserts that despite requests for that information it was not provided and also that a Comprehensive Care Plan for him was not implemented.  It is pleaded that the defendant failed in its duty and, as a result, the plaintiff suffered an injury and loss, a psychological injury and the loss of an opportunity to control the cancer through chemotherapy treatment prior to 13 September 2019 (40(a)-(d)).
  5. [11]
    The plaintiff resisted the orders for striking out, maintaining that apart from paragraphs 21B and 21C the paragraphs disclosed causes of action.

Paragraphs 11A – 11C and 98 (l)

  1. [12]
    On 24 May 2019 the defendant conducted tests on the plaintiff which revealed that the plaintiff suffered rapid atrial fibrillation.  The defendant identified cardiac impairment but did not perform further tests (11A and 11B).  The defendant failed in its duty of care to the plaintiff “on diagnosis of atrial fibrillation” (11C) by failing to do certain things and by doing an act, namely, administering to the plaintiff a chemotherapy agent on 13 September 2019 which caused a medical emergency (11C.1.viii).  As a result the plaintiff suffered physical and psychiatric injuries (11C.2), though the injuries were “not limited to” those listed.  The injuries pleaded were: loss of medical intervention to arrest or ameliorate the cardiac impairment; exposure to cardiac arrest in the administration of the chemotherapy agent without the plaintiff’s full informed consent; psychological injury resulting from multiple failures in the defendant’s duty of care, and from the plaintiff’s loss of trust and confidence in the defendant’s obligations and duty of care; and diagnosed permanent cardiac impairment as a result of the defendant’s failure to implement a care plan on knowledge of the impairment.  “In summary, and by reasons pleaded above” (98) the defendant “(l) failed to provide cardiac assessment, treatment and care on identification by the defendant of the plaintiff’s cardiac impairment”.
  2. [13]
    The defendant’s submission that a new cause of action is pleaded in these paragraphs is correct.  To adopt language used by McMurdo J (as his Honour then was) in Borsato v Campbell & Ors,[2] in substance the case pleaded in paragraphs 11A – 11C is such a different case from that pleaded in paragraphs 1-11 that it cannot be described as further particularisation of the case relied on in these earlier paragraphs.  The injuries pleaded as the damage followed a diagnosis made on 24 May 2019, whereas the injuries relied on as having caused damage after the cancer diagnosis followed that diagnosis on 5 June 2019.
  3. [14]
    It is clear that paragraphs 11A – 11C assert the identification of a cardiac condition in May 2019 and a failure “on diagnosis of” that condition or “on identification” of that condition.  In other words that there was a failure then to provide treatment to the plaintiff which caused physical and psychiatric injuries.  In particular, a positive act done in September 2019 resulted in a medical emergency.
  4. [15]
    In Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd  McMurdo P said:[3]

“It is well-established that, ordinarily, a cause of action in tortious negligence arises when a plaintiff first suffers material damage or relevant loss, providing the damage is more than negligible and the loss measurable.” (Footnotes omitted).

  1. [16]
    As already observed, the claim which commenced the present proceeding was filed on 20 March 2023, outside the three year limitation period for injuries incurred by September 2019.[4]  Paragraphs 11A – 11C and 98(l) are statute-barred.
  2. [17]
    Leave is required to include a new cause of action after the limitation period has ended (r 376 (4)).  However, r 376 (1) requires that the limitation period “be current at the date the proceeding was started.”  The limitation period had expired prior to 20 March 2023.
  3. [18]
    Due to the expiration of the limitation period paragraphs 11A – 11C and 98(l) disclose no reasonable cause of action and will be struck out pursuant to r 171(1)(a) of the UCPR.

Paragraphs 11D – 11J

  1. [19]
    Following the hearing before Freeburn J on 9 December 2024 the plaintiff suffered a cardiac event, was admitted to a hospital and was diagnosed with rapid atrial fibrillation (11D and 11E).  Delayed by illness and other “factor” the plaintiff did not comply with orders of the Court.  The defendant wrote a letter to the plaintiff accusing him of fabricating an illness to avoid compliance with the orders (11I).  The defendant announced an intention to apply for an order dismissing the plaintiffs’ proceeding.  As a “result of the accusation and threat the plaintiff suffered anxiety and depression” (11J).  The particulars provided under paragraph 11J identified a letter of 27 March 2025 from the defendant which it was said accused the plaintiff of fabricating an illness to avoid compliance with the orders of the Court.
  2. [20]
    On an application to strike out the Court is not confined to receiving evidence about the pleading (r 171(3)).
  3. [21]
    The letter Crown Law sent on behalf of the defendant to the plaintiff on 27 March 2025 stated that, “We will be submitting to the court that your referenced health issues are not the reason you have failed to comply with his Honour’s orders but, rather, your disagreement with those orders.”[5]
  4. [22]
    In The Beach Club Port Douglas Pty Ltd v Page McPherson JA said[6], “no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff”.
  5. [23]
    Paragraphs 11D – 11J do not disclose a reasonable cause of action and will be struck out pursuant to r 171(1)(a).

Paragraphs 11K – 11L

  1. [24]
    On the diagnosis of cancer in 2019 the plaintiff suffered a mental health impairment “exacerbated” by the conduct of the defendant in the proceeding BS 8473/18 – Collins v State of Queensland and by the conduct of the defendant in the present proceeding.
  2. [25]
    The defendant (though the pleading does not specify whether it was the State of Queensland or the present defendant) knew of the plaintiff’s mental health concerns after the diagnosis of cancer and: failed to assess whether he was at risk of mental health dysfunction or was suffering mental health impairment; failed to provide psychological support to him; at times conducted its defence in a way that denied him medical treatment and justice by way of obstruction of or intimidation of him in “pre- and Court procedures” and thereby “caused the plaintiff mental health injury” (11L(iii)); and, stated in clinical notes that the plaintiff was concerned about a Court case, that there was a lack of support and holistic care from the defendant, including on mental health, that the plaintiff personally had to assess survivorship and other issues, and that he raised concern with the defendant about cardiac issues at times of scheduled chemotherapy (11L).
  3. [26]
    Paragraph 11L(iii) asserts two matters.  One is that in conduct prior to Court proceedings (“in pre-” Court “procedures”) the defendant (either the State of Queensland or Metro North Hospital and Health Service) caused the plaintiff an injury to his mental health.  The other matter is that in the conduct of litigation (“in … Court procedures”) the defendant (either the State of Queensland or Metro North Hospital and Health Service) caused the plaintiff an injury to his mental health.
  4. [27]
    Any claim in relation to the previous proceeding is statute barred.  The limitation period expired in September 2022 as the previous proceeding ended on 10 September 2019 when a notice of discontinuance was filed.
  5. [28]
    As already stated, no duty of care in negligence is owed by a litigant or his lawyers to an opponent.  Lawyers do not owe a duty of care to a third party (the plaintiff) in their conduct of matters prior to a legal proceeding commencing.  In Lee v Abedian Bond J (as his Honour then was) said:[7]

“… a duty of care owed to the client in connection with the production of a report concerning potential legal proceedings against a third party cannot be tempered by the existence of a duty owed to the client’s potential adversary in those legal proceedings.”

  1. [29]
    The defendant did not owe the plaintiff a duty of care in relation to dealings in the pre-proceeding process.  The compulsory conference was part of the litigation process.[8]
  2. [30]
    For these reasons no reasonable cause of action is disclosed in paragraphs 11K-11L.  These paragraphs will be struck out pursuant to r 171(1)(a).

Paragraphs 18-22

  1. [31]
    The defendant failed to allocate funds to the Prostate Cancer Outcomes Registry causing the plaintiff to lose “potential opportunity” of analysis of his disease and advice or recommendation of treatment (18).  The plaintiff had evidence of the failure (19) and had pointed the failure out to the Minister for Health and Ambulance Services (20).  The failure to fund the Registry caused the plaintiff to “lose opportunity” for his clinical data to be assessed by researchers and a determination of any benefit that “might” arise for his care and treatment (21).  The defendant failed to provide the plaintiff with an “opportunity” to discuss his cancer treatment. The funding failure caused the plaintiff to lose “potential” benefit of analysis of his clinical data and of “any” therapeutic outcome and advice and “potential” treatment. (22).
  2. [32]
    Again, these paragraphs do not disclose a reasonable cause of action.  No facts are pleaded by which it is asserted a duty of care is owed that would involve a duty to fund an external research body. 
  3. [33]
    No damage is pleaded as a consequence of any failure to fund an external research body.  Paragraph 22 refers to loss of an option to participate in trials, loss of “potential” benefits flowing from analysis of the plaintiff’s clinical data and a loss of research benefit and “potential” treatment.  The law does not recognise a loss of a chance of a better outcome as actionable.[9]
  4. [34]
    These paragraphs will be struck out pursuant to r 171(1)(a).

Paragraphs 31E – 31G

  1. [35]
    On 12 May 2022 the defendant waived compliance with the Personal Injuries Proceedings Act 2002 (31E).  On 14 July 2022, the defendant said a statement admitting or denying liability would be provided (31F).  In a letter dated 9 November 2022 the defendant canvassed proposed dates for a compulsory conference (31G).
  2. [36]
    These paragraphs do not disclose a reasonable cause of action.  No duty of care is pleaded, no breach of duty or damage are pleaded.  There is no apparent relationship between these paragraphs and any other paragraphs in the Seventh Amended Statement of Claim.
  3. [37]
    These paragraphs will be struck out pursuant to r 171(1)(a).

The rest of paragraph 98 and the last unnumbered paragraph

  1. [38]
    Paragraph 98 pleads that “In summary, and by reason pleaded above,” the defendant knew about four matters (98(a), (b), (c), (d)), denied the plaintiff information (98(f), (g)), failed in two ways (98 (i), (j)), breached a duty of care (98(k)) and adopted one  method of cancer screening when there was a better method available (98(e)). 
  2. [39]
    The last unnumbered paragraph claimed damages in the sum of $1,069,534.  The plaintiff’s claim was broken down into an amount for “Damages for injury”, an amount for “General damages (pain and suffering)” and an amount for “Future care and assistance (medical care, counselling / domestic)”.
  3. [40]
    Rather than pursuing the striking out of these paragraphs, the defendant maintained that the Court should order further and better particulars of the alleged loss and damage.  The defendant said particulars should be provided of the precise injury, whether physical or psychiatric, alleged to have been caused by each breach of duty pleaded in paragraph 98 (apart from 98(l) dealt with above) to avoid it being taken by surprise.  Also, particulars should be provided of the calculation of the loss and damage claimed in respect of the sums pleaded in the last unnumbered paragraph.  In this regard the defendant relies on r 155.
  4. [41]
    The defendant is entitled to know the case it has to meet.  Rule 149(1)(b) requires that a pleading must contain a statement of all the material facts on which a party relies.  Putting aside one part of 98(f), which refers to the failure to fund the Prostate Cancer Outcomes Registry which denied the plaintiff the benefit of potential research, and paragraph 98(l), the rest of paragraph 98 is referrable to paragraphs 1-11 and to the other paragraphs in the Seventh Amended Statement of Claim that are not the subject of any application to strike out.  Paragraph 98 is asserted to be a “summary” and I do not consider that the defendant requires further and better particulars of the contents of paragraph 98.  Only paragraph 98(k) asserts a breach of a duty of care, being failure to screen the plaintiff for mental health issues before commencement of treatment.  This subparagraph has to be read in the context of some paragraphs which preceded it.  Paragraph 11(i) pleads that the defendant breached a duty to the plaintiff by failing to supply and implement a Comprehensive Care Plan.  Paragraph 67 pleads that the defendant did not implement a Comprehensive Care Plan.  Paragraph 74 pleads the defendant denied the plaintiff mental health assessment at diagnosis and, in the absence of a Comprehensive Care Plan, further denied him regular mental health screening during treatment.  Paragraphs 76 and 77 plead that expert assessments performed in 2021 and 2022 showed that the plaintiff satisfied criteria for depression and post-traumatic stress disorder. 
  5. [42]
    It is reasonably clear that the plaintiff is asserting that the defendant owed him a duty, breached that duty and this caused him damage so I decline to make an order for the provision of written further and better particulars in relation to paragraph 98.
  6. [43]
    Every type of damage claimed must be specifically pleaded (r 150(1)(b)).  The pleading must state the nature and amount of the damages claimed (r 155(1)).  Without limiting r 150(1)(b), r 155(2) states a party claiming general damages must include particulars in the pleading of (a) the nature of the loss or damage suffered, (b) the exact circumstances in which the loss or damage was suffered, and (c) the basis on which the amount claimed has been worked out or estimated.
  7. [44]
    However, I do not consider that at the present time the defendant requires further and better particulars of the damages set out in the last unnumbered paragraph of the Seventh Amended Statement of Claim.  The defendant can expect that in due course the plaintiff will provide a written statement of loss and damage containing details about amounts sought as damages (rr 547 and 548). 
  8. [45]
    In Barclay Mowlem Construction Limited v Dampier Port Authority,[10] Martin CJ, after observing that the purposes of pleadings included informing the other party about the case to be met, said a court can be:

“… confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.”[11]

  1. [46]
    In view of the obligations imposed by rr 547 and 548, I decline to make any order for the provision of written further and better particulars concerning the last unnumbered paragraph.

No further statement of claim without leave

  1. [47]
    The defendant seeks an order that the plaintiff may not further amend the Eighth Amended Statement of Claim except by way of application to do so, upon an application filed and served on the defendant on not less than 10 days’ notice of the hearing.  The defendant submits that this order is necessary because this is the third strike out application and the claim cannot proceed in this way with the costs and wasted time involved.
  2. [48]
    Having regard to the history of this litigation I consider that the appropriate order is that in the event the plaintiff seeks to further amend the Eighth Amended Statement of Claim he must serve a copy of the proposed further amended statement of claim on the defendant, the defendant will have 14 days within which to advise the plaintiff of any objections it may have to the proposed amended statement of claim and, in the event the defendant does have objections, the plaintiff is to file an application for leave to file the proposed further amended statement of claim.  This order is one contemplated by r 367.

Another matter

  1. [49]
    On this application the defendant seeks the relief of a retrospective extension of the time stipulated in order 5 made on 9 May 2025 by Freeburn J in which the defendant was not required to plead to the Seventh Amended Statement of Claim from 19 June 2025 to 16 July 2025.  On 16 July 2025 Freeburn J ordered that the defendant was not required to plead in response to the Seventh Amended Statement of Claim until a date after the defendant’s application to strike out was determined.  A review had been scheduled for 19 June 2025 but due to the Court’s inability to hear the review on 19 June 2025, the Court fixed 16 July 2025 as a date for the review.  The defendant points out that r 385(2) would ordinarily have required the defendant to amend its defence within eight days after receiving the Seventh Amended Statement of Claim and that r 7 allows for extensions of time.  I cannot discern that any prejudice will be suffered by the plaintiff if this order is made.  The plaintiff’s submission only concentrated on what he regarded as an unacceptable failure to comply more generally with the UCPR.  Accordingly, the order sought will be made.
  2. [50]
    Also, as it will be necessary for the plaintiff to file an Eighth Amended Statement of Claim in consequence of the striking out of paragraphs 11A – 11L, 18 – 22, 31E – 31G and 98(l), the defendant will not be required to plead in response to the Seventh Amended Statement of Claim.

Costs of this application

  1. [51]
    The defendant has substantially succeeded in its application.  The defendant seeks an order that the plaintiff pay the defendant’s costs of the application on the indemnity basis, alternatively, the standard basis.
  2. [52]
    Costs are sought on the indemnity basis because it is said that the plaintiff wilfully disregarded known facts or clearly established law and made allegations he should never have made.[12]  In particular, the defendant points to the agitation of claims of a duty owed to the opposing litigant in the face of the reasons for judgment in Collins v Metro North Hospital and Health Service & Ors.[13]  Sullivan J struck out portions of the pleadings which asserted counsel in a proceeding concerning the loss of the plaintiff’s yacht[14] owed the plaintiff a duty of care.  His Honour also held that counsel retained by the defendant to represent the defendant at a compulsory conference held prior to but in relation to the present proceeding and provided for in the Personal Injuries Proceedings Act 2002 did not owe a tortious duty to the plaintiff.  As a result  the pleadings against the then third defendant were struck out.
  3. [53]
    The defendant also points to this being the third strike out application.
  4. [54]
    I am not persuaded that the self-represented plaintiff wilfully disregarded clearly established law.  I decline to order costs on the indemnity basis.  There will be an order that the plaintiff pay the defendant’s costs of the application on the standard basis.

Plaintiff’s application

  1. [55]
    The plaintiff has applied for orders that:
    1. Pursuant to r 668 of the UCPR, alternatively r 667(2)(b), the order of Freeburn J made on 9 December 2024 striking out the following paragraphs be set aside: 31A – 31D, 60A – 60D, 78A – 78Z17, 97A – 97R and 98h1;
    2. Pursuant to r 668, alternatively r 667(2)(b), the order of Sullivan J made on 28 August 2023 striking out the following paragraphs be set aside:  1C, 1D, 4(ii), 4(I), 22 – 27, 28, 28(i) – 28(v), 28(viii), 28(x), 75 – 93, 94(h), 96 – 98.
    3. On setting aside these paragraphs the plaintiff file and serve an Eighth Amended Statement of Claim;
    4. Pursuant to r 385(2) the defendant file and serve a Fifth Amended Defence;
    5. Pursuant to r 323, alternatively r 553(1), the parties are to hold a mediated conference to discuss the dispute in good faith and to attempt settlement;
    6. The defendant comply fully with the UCPR.
  2. [56]
    The paragraphs struck out by Freeburn J on 9 December 2024 were contained in the Fifth Amended Statement of Claim.  The paragraphs struck out by Sullivan J on 28 August 2023 were contained in what was then described as the amended statement of claim, and could now be regarded as the First Amended Statement of Claim.
  3. [57]
    Rule 668 relevantly provides:

“668  Matters arising after order

  1. This rule applies if—
  1. facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
  1. facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
  1. On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
  1. Without limiting subrule (2), the court may do one or more of the following—
  1. …
  1. set aside or vary the order;
  1. ...”
  1. [58]
    Rule 667 relevantly provides:

“667  Setting aside

  1. …
  1. The court may set aside an order at any time if—
  1. …
  1. the order was obtained by fraud; or
  1. …”
  1. [59]
    The plaintiff appeared at the hearing before Freeburn J and the hearing before Sullivan J and made submissions on each occasion resisting the strike out orders.  After each hearing he filed and served Amended Statements of Claims deleting the paragraphs which had been struck out.
  2. [60]
    In an affidavit affirmed on 8 August 2025 the plaintiff advanced submissions in support of the application to set aside the strike out orders.  A prominent submission concerned “the compulsory conference 20 January 2023”.  In relation to this matter the plaintiff deposed:

“… that the Plaintiff was caught by surprise that the conference was not held compliant with the Model Litigant Principles or intention of the PIPA; that the Plaintiff was unaware until end of conference that the Defendant did not comply with written undertakings to the Plaintiff on the Model Litigant Principles; that the Plaintiff was unaware that counsel for the defendant … did not comply with the Model Litigant Principles and Barristers Conduct Rules on duty to the Court and opponent in conduct at the compulsory conference.”

  1. [61]
    As the reasons of Sullivan J make clear, these were matters the plaintiff had knowledge of prior to Sullivan J striking out some paragraphs from the First Amended Statement of Claim.  Sullivan J said:[15]

“The plaintiff contends that the conducting of the conference in the way alleged in the pleading has caused him psychiatric injury, which was described as a significant depressive injury at the conference, and further post-conference depressive injuries. Part of the plaintiff’s case is said to include breaches of the Model Litigant Principles (Qld) (‘MLP’), breaches of the Barristers’ Conduct Rules (Qld) (‘Bar Rules’) and a breach of the obligation in s 38(6) of the PIPA to ‘actively participate’ in the conference. The pleading in this respect is entirely unclear as to whether these are simply part of a tortious duty of care cause of action or are said to be free-standing causes of actions in themselves. Attempts to clarify the matter in oral submissions proved unproductive.” (Footnotes omitted)

  1. [62]
    The matters concerning alleged breaches of Model Litigant Principles and Barristers’ Rules do not constitute facts discovered after 28 August 2023 and so do not advance the plaintiff’s application under r 668 in relation to either of the strike out orders. 
  2. [63]
    In Partram Developments Pty Ltd v The Registrar of Cooperative Housing Societies, Flanagan JA said:[16]

“[28]  What must be established to set aside an order obtained by fraud was explained by Kirby P (with whom Hope and Samuels JJA agreed) in Wentworth:

‘… it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment…’

[29]  Kirby P continued:

‘In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.’

[30]  It was incumbent on the appellants to prove actual fraud.”

  1. [64]
    Concerning fraud, the plaintiff asserted in his affidavit and oral submissions that fraud led to the striking out of paragraph 83 of the First Amended Statement of Claim on 28 August 2023 and paragraph 97L of the Fourth Amended Statement of Claim on 9 December 2024.  These two paragraphs related to attendance at a compulsory conference.
  2. [65]
    The plaintiff submitted that the defendant did not produce documents at the compulsory conference, yet later admitted that it had done so.  This submission had been pleaded in both paragraphs 83 and 97L.  It was twice denied by the defendant, first in its defence filed on 1 June 2023 and then in the Fourth Amended Defence filed on 12 September 2024.  Both of those documents were filed prior to the hearings which resulted in the striking out of paragraph 83 by Sullivan J and paragraph 97L by Freeburn J.  Fraud is not thereby established.  All that is revealed is a disagreement between the parties about recollections of an event.
  3. [66]
    The plaintiff also deposed that in the defendant’s notice of intention to defend and subsequent defences counsel for the defendant deceived the Court in stating that the conference of 20 January 2023 was “held without prejudice privilege”. 
  4. [67]
    This allegation completely misconceives what was stated in the defence filed on 1 June 2023.  After the denial in relation to paragraph 83 the defence went on to state:

“objects in point of law to such allegation [the allegation being that the defendant arrived at the conference without documents] on the basis that the compulsory conference was, pursuant to the PIP Act an occasion of without prejudice privilege, such that any statement or event occurring thereon was privileged between the parties, so as to preclude the same being pleaded or relied upon in court on any occasion.”

  1. [68]
    Fraud has not been established.  The plaintiff’s submission also does not demonstrate any newly discovered fact, a prerequisite to the operation of r 668.
  2. [69]
    The plaintiff’s affidavit goes on to assert various alleged errors which attended each of the strike out decisions.  These assertions are irrelevant to an application under either r 667(2)(b) or r 668.  The plaintiff’s remedy, if he considered the decisions to strike out were wrong, was to seek to appeal.  The plaintiff knew that option was available to him because he filed a notice of appeal against the orders Sullivan J made within the time limited for an appeal but withdrew the appeal prior to it being heard.
  3. [70]
    The plaintiff has failed to identify any newly established facts to warrant the setting aside of either strike out order.  He has failed to show that either order was obtained by fraud.  The application for setting aside the orders for strike out will be refused. 
  4. [71]
    The application for an order that the parties attend a mediation is made notwithstanding that the same application was made before Freeburn J on 9 December 2024 and refused.  The defendant submits that it has resisted liability throughout and there is no point to a further mediation.  In these circumstances I will not make an order that the parties attend mediation.
  5. [72]
    The application for an order that the defendant comply with the UCPR will be declined.  At the very least, if such an order could be made, it is unnecessary.  All parties are bound by the UCPR.
  6. [73]
    In the event the plaintiff’s application was dismissed the defendant submitted that it should have the costs of that application on an indemnity basis.  The plaintiff submitted that in the event of dismissal costs should be reserved.
  7. [74]
    Costs will be ordered on the indemnity basis.  The plaintiff brought this application absent any foundation for assertions orders were obtained by fraud and absent any foundation for an assertion that there had been facts newly discovered that would have warranted the setting aside of the orders.  In this application the plaintiff applied for the same relief (mediation) that was refused to him on 9 December 2024.

Orders

  1. [75]
    On the defendant’s application the Court orders:
  1. Paragraphs 11A – 11L, 18 – 22, 31E – 31G and 98(l) be struck out of the Seventh Amended Statement of Claim.
  2. The time stipulated in order 5 of Freeburn J on 9 May 2025 in which the defendant is not required to plead to the Seventh Amended Statement of Claim is extended from 19 June 2025 until 16 July 2025.
  3. The defendant is not required to plead in response to the Seventh Amended Statement of Claim.
  4. By 4:00pm on 25 September 2025 the plaintiff file and serve an Eighth Amended Statement of Claim in consequence of order 1.
  5. The defendant file and serve an amended defence to the Eighth Amended Statement of Claim within 28 days of service of the Eighth Amended Statement of Claim.
  6. Any further amendment of the Eighth Amended Statement of Claim must first be served on the defendant, the defendant is to advise the plaintiff within 14 days of service of any objections it may have to the further amendment of the Eighth Amended Statement of Claim and in that event the plaintiff is to file an application for leave to file the proposed further amendment of the Eighth Amended Statement of Claim.
  7. The plaintiff is to pay the defendant’s costs of the defendant’s application on the standard basis.
  1. [76]
    On the plaintiff’s application the Court orders:
  1. The plaintiff’s application is refused.
  1. The plaintiff is to pay the defendant’s costs of the plaintiff’s application on the indemnity basis.

Footnotes

[1]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-30, Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd and Ors [2022] QSC 112 at [38], Lee v Abedian [2017] 1 Qd R 549 at [38]-[39].

[2]  [2006] QSC 191 at [14].

[3]  [2015] 1 Qd R 476 at [28].

[4]Limitation of Actions Act 1973 (Qld) s 11.

[5]  Affidavit of E Walker sworn 27 March 2025 Exhibit EW-6.

[6]  [2006] 1 Qd R 307 at [19].

[7]  [2017] 1 Qd R 549 at [57].

[8]Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194 at [122].

[9]Tabet v Gett (2010) 240 CLR 537 at [46]-[47], [59], [66]-[68], [124], [152].

[10]  (2006) 33 WAR 82.

[11]  At [6].

[12]  See Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 – 234.

[13]  [2023] QSC 194.

[14]  BS 8473/18.

[15]Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194 at [9].

[16]  [2025] QCA 13 at [28]-[30].

Close

Editorial Notes

  • Published Case Name:

    Collins v Metro North Hospital and Health Service

  • Shortened Case Name:

    Collins v Metro North Hospital and Health Service

  • MNC:

    [2025] QSC 225

  • Court:

    QSC

  • Judge(s):

    Copley J

  • Date:

    10 Sep 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82
2 citations
Jump To
Cite 1 - (2006) 33 WAR 82
Cite 2 - (2006) 33 WAR 82
Borsato v Campbell [2006] QSC 191
2 citations
Jump To
Cite 1 - [2006] QSC 191
Cite 2 - [2006] QSC 191
Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd [2022] QSC 112
2 citations
Jump To
Cite 1 - [2022] QSC 112
Cite 2 - [2022] QSC 112
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 F.C.R 225
2 citations
Jump To
Cite 1 - (1993) 46 F.C.R 225
Cite 2 - (1993) 46 F.C.R 225
Collins v Metro North Hospital and Health Service(2023) 16 QR 268; [2023] QSC 194
4 citations
Jump To
Cite 1 - [2023] QSC 194
Cite 2 - [2023] QSC 194
Cite 3 - [2023] QSC 194
Cite 4 - [2023] QSC 194
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Lee v Abedian[2017] 1 Qd R 549; [2016] QSC 92
3 citations
Jump To
Cite 1 - [2017] 1 Qd R 549
Cite 2 - [2017] 1 Qd R 549
Cite 3 - [2017] 1 Qd R 549
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited[2015] 1 Qd R 476; [2014] QCA 233
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 476
Cite 2 - [2015] 1 Qd R 476
Partram Developments Pty Ltd v Registrar of Cooperative Housing Societies [2025] QCA 13
2 citations
Jump To
Cite 1 - [2025] QCA 13
Cite 2 - [2025] QCA 13
Tabet v Gett (2010) 240 CLR 537
2 citations
Jump To
Cite 1 - (2010) 240 CLR 537
Cite 2 - (2010) 240 CLR 537
The Beach Club Port Douglas Pty Ltd v Page[2006] 1 Qd R 307; [2005] QCA 475
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 307

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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