Alder v Khoo - [2011] QCA 298

SUPREME COURT OF QUEENSLAND

CITATION:

Alder v Khoo & Anor [2011] QCA 298

PARTIES:

LANCE ALDER as litigation guardian for TRENT ASHLEY ALDER
(appellant)
v
PAUL KHOO
(first respondent)
STATE OF QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 5059 of 2011
SC No 13325 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2011

JUDGES:

Muir, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS –STAYING PROCEEDINGS – where the appellant commenced proceedings against the first respondent obstetrician and the second respondent State of Queensland for negligence – where the respondents denied liability on grounds that the appellant’s disabilities were due to a pre-existing genetic condition, Angelman’s Syndrome – where the parties dispute whether the appellant in fact suffers from Angelman’s Syndrome – where the appellant made an application to strike out parts of the respondents’ defences relying on Angelman’s Syndrome consequent upon alleged non-disclosure by the second respondent – where the appellant submitted that documents were destroyed in contravention of the second respondent’s policies regarding document retention – where the primary judge dismissed the appellant’s application – whether the destruction of documents would prejudice a fair trial – whether the primary judge erred in dismissing the appellant’s application

Criminal Code 1899 (Qld), s 129
Public Records Act 2002 (Qld), s 7, s 8, s 11, s 13, s 14
Uniform Civil Procedure Rules 1999 (Qld)

Mango Boulevard Pty Ltd v Spencer & Ors[2008] QCA 274, considered

COUNSEL:

The appellant appeared on his own behalf
G W Diehm SC for the first respondent
D de Jersey for the second respondent

SOLICITORS:

The appellant appeared on his own behalf
Flower and Hart Lawyers for the first respondent
Cooper Grace Ward Lawyers for the second respondent

MUIR JA: In December 2008 the appellant, by his litigation guardian, commenced proceedings against the first respondent obstetrician and the second respondent, the State of Queensland, claiming relief including “damages and/or equitable and/or exemplary damages … for personal injuries … in consequence of the negligence and/or breaches of fiduciary duty of the first [respondent] and/or … the second [respondent]”.

The substance of the pleaded allegations was that, due to the negligence of the first respondent in the care of the appellant’s mother when giving birth to the appellant on 3 January 1989, the appellant suffered hypertonic spastic quadriplegia; spastic quadriplegia; severe associated movement disorder; cerebral palsy and spasticity. The second respondent was alleged to be liable as the owner and operator of the Rockhampton Base Hospital and the employer of the first respondent.

The respondents denied liability on grounds, inter alia, that the appellant does not suffer from cerebral palsy but from Angelman’s Syndrome, a genetic condition. It was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCA 298
Decision Date: 21 October 2011

CaseChat Overview and Summary

The case of Alder v Khoo involved the appellant, Alder, who initiated proceedings against the first respondent obstetrician and the second respondent, the State of Queensland, for alleged negligence. The respondents contested the claim, asserting that Alder’s disabilities resulted from a pre-existing genetic condition known as Angelman’s Syndrome. A significant point of contention was whether Alder indeed suffers from this syndrome. Alder sought to strike out parts of the respondents’ defences, which referenced Angelman’s Syndrome, alleging that the respondents had failed to disclose this information. The appellant further argued that documents were destroyed in violation of the second respondent's document retention policies, potentially prejudicing a fair trial.

The primary legal issues for the court to address were whether the destruction of documents by the second respondent would prejudice the fairness of the trial and if the primary judge had erred in dismissing Alder’s application to strike out certain parts of the respondents’ defence. The court was tasked with determining whether the alleged non-disclosure and destruction of documents were significant enough to warrant a stay of proceedings or a correction in the trial process.

The court found that the destruction of documents did not prejudice the fairness of the trial, as the appellant had not demonstrated how the loss of these documents would impact the substantive merits of the case. The court also concluded that the primary judge had not erred in dismissing the application to strike out parts of the respondents’ defence. The appeal was dismissed with costs awarded against the appellant.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alder v Khoo & Anor [2011] QCA 298
PARTIES:	LANCE ALDER as litigation guardian for TRENT ASHLEY ALDER (appellant) v PAUL KHOO (first respondent) STATE OF QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 5059 of 2011 SC No 13325 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2011
JUDGES:	Muir, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS –STAYING PROCEEDINGS – where the appellant commenced proceedings against the first respondent obstetrician and the second respondent State of Queensland for negligence – where the respondents denied liability on grounds that the appellant’s disabilities were due to a pre-existing genetic condition, Angelman’s Syndrome – where the parties dispute whether the appellant in fact suffers from Angelman’s Syndrome – where the appellant made an application to strike out parts of the respondents’ defences relying on Angelman’s Syndrome consequent upon alleged non-disclosure by the second respondent – where the appellant submitted that documents were destroyed in contravention of the second respondent’s policies regarding document retention – where the primary judge dismissed the appellant’s application – whether the destruction of documents would prejudice a fair trial – whether the primary judge erred in dismissing the appellant’s application Criminal Code 1899 (Qld), s 129 Public Records Act 2002 (Qld), s 7, s 8, s 11, s 13, s 14 Uniform Civil Procedure Rules 1999 (Qld) Mango Boulevard Pty Ltd v Spencer & Ors[2008] QCA 274, considered
COUNSEL:	The appellant appeared on his own behalf G W Diehm SC for the first respondent D de Jersey for the second respondent
SOLICITORS:	The appellant appeared on his own behalf Flower and Hart Lawyers for the first respondent Cooper Grace Ward Lawyers for the second respondent