Alder v Khoo - [2010] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

Alder v Khoo & Ors [2010] QCA 360

PARTIES:

LANCE ALDER as litigation guardian for TRENT ASHLEY ALDER
(plaintiff/applicant/appellant)
v
PAUL KHOO
(first defendant/first respondent)
STATE OF QUEENSLAND
(second defendant/second respondent)
STATE OF SOUTH AUSTRALIA
(non-party/third respondent)

FILE NO/S:

Appeal No 6519 of 2010
SC No 13325 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2010

JUDGES:

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

ORDERS:

1. The appeal should be dismissed with costs.

2. The application to adduce further evidence should be refused.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where appellant plaintiff has commenced proceedings against the first and second respondents for negligence – where respondents contend the appellant’s disabilities are due to a pre-existing genetic condition, Angelman’s Syndrome – where the parties dispute whether the appellant in fact suffers Angelman’s Syndrome – where the appellant contests the results of previous DNA tests – where the primary judge adjourned the proceedings until the appellant gave a blood sample for the purpose of undertaking a new DNA test, subject to conditions – where appellant demands stricter conditions on the test be imposed – whether the proceedings should be adjourned until another test is conducted – whether the conditions imposed by the trial judge are reasonable

PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – RELIEF AGAINST – where appellant alleges the third respondent has knowingly withheld documentation relating to DNA test results relevant to proceedings below – where appellant issued a subpoena against the third respondent and applied for the third respondent to be held in contempt – whether primary judge was right to set aside the subpoena and dismiss the application

Uniform Civil Procedure Rules 1999 (Qld), r 366, r 366(2), r 367(1), r 658

Edmeades v Thames Board Mills Ltd [1969] 2 QB 67; [1969] 2 WLR 668, cited
Gray v Hopcroft & Anor [2000] QCA 144, cited
Timmins v Yandilla Park Ltd [2000] QSC 281, cited

COUNSEL:

The appellant appeared on his own behalf through his litigation guardian
G W Diehm SC for the first respondent
D de Jersey for the second respondent
A Horneman-Wren SC, with G B Dann, for the third respondent

SOLICITORS:

The appellant appeared on his own behalf through his litigation guardian
Flower & Hart for the first respondent
Cooper Grace Ward Lawyers for the second respondent
Crown Law for the third respondent

[1] MUIR JA: I agree with the reasons of Chesterman JA and with the orders proposed by him.

[2] CHESTERMAN JA: This is an appeal against three orders made by Ann Lyons J on 26 May 2010. The…

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.

Continue reading Alder v Khoo

Details

AGLC: Alder v Khoo [2010] QCA 360
Case: [2010] QCA 360
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appeal in Alder v Khoo involved the appellant, who had initiated proceedings against the first and second respondents for negligence. The respondents argued that the appellant's disabilities resulted from a pre-existing genetic condition, Angelman's Syndrome. The appellant contested the results of previous DNA tests and sought stricter conditions for a new test before proceeding with the case. The primary judge had adjourned the proceedings until the appellant provided a blood sample for a new DNA test, subject to certain conditions. The appellant objected to these conditions and requested stricter ones before the proceedings could continue. The court was required to determine whether the proceedings should be adjourned for another test and whether the conditions imposed by the trial judge were reasonable.

The central legal issues before the court were whether the primary judge's decision to adjourn the proceedings pending a new DNA test was appropriate and whether the conditions imposed on the test were reasonable. Additionally, the court had to consider whether the primary judge correctly set aside a subpoena issued by the appellant against the third respondent and dismissed the appellant's application for the third respondent to be held in contempt for allegedly withholding relevant documentation.

The court found that the primary judge's decision to adjourn the proceedings was appropriate as it aimed to ensure the accuracy of the DNA test results. The court held that the conditions imposed on the test were reasonable, as they balanced the need for reliable evidence with the appellant's concerns. Regarding the subpoena and contempt application, the court upheld the primary judge's decision to set aside the subpoena and dismiss the application, as the appellant had not demonstrated that the third respondent had knowingly withheld documentation. Consequently, the court dismissed the appeal and refused the application to adduce further evidence. The court's decision upheld the primary judge's handling of the case, maintaining the balance between procedural fairness and the need for reliable evidence in the proceedings.

Orders

Orders of the court

1. The appeal should be dismissed with costs.

2. The application to adduce further evidence should be refused.

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 & Ors [2010] QCA 360
PARTIES:	LANCE ALDER as litigation guardian for TRENT ASHLEY ALDER (plaintiff/applicant/appellant) v PAUL KHOO (first defendant/first respondent) STATE OF QUEENSLAND (second defendant/second respondent) STATE OF SOUTH AUSTRALIA (non-party/third respondent)
FILE NO/S:	Appeal No 6519 of 2010 SC No 13325 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2010
JUDGES:	Muir, Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal should be dismissed with costs. 2. The application to adduce further evidence should be refused.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where appellant plaintiff has commenced proceedings against the first and second respondents for negligence – where respondents contend the appellant’s disabilities are due to a pre-existing genetic condition, Angelman’s Syndrome – where the parties dispute whether the appellant in fact suffers Angelman’s Syndrome – where the appellant contests the results of previous DNA tests – where the primary judge adjourned the proceedings until the appellant gave a blood sample for the purpose of undertaking a new DNA test, subject to conditions – where appellant demands stricter conditions on the test be imposed – whether the proceedings should be adjourned until another test is conducted – whether the conditions imposed by the trial judge are reasonable PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – RELIEF AGAINST – where appellant alleges the third respondent has knowingly withheld documentation relating to DNA test results relevant to proceedings below – where appellant issued a subpoena against the third respondent and applied for the third respondent to be held in contempt – whether primary judge was right to set aside the subpoena and dismiss the application Uniform Civil Procedure Rules 1999 (Qld), r 366, r 366(2), r 367(1), r 658 Edmeades v Thames Board Mills Ltd [1969] 2 QB 67; [1969] 2 WLR 668, cited Gray v Hopcroft & Anor [2000] QCA 144, cited Timmins v Yandilla Park Ltd [2000] QSC 281, cited
COUNSEL:	The appellant appeared on his own behalf through his litigation guardian G W Diehm SC for the first respondent D de Jersey for the second respondent A Horneman-Wren SC, with G B Dann, for the third respondent
SOLICITORS:	The appellant appeared on his own behalf through his litigation guardian Flower & Hart for the first respondent Cooper Grace Ward Lawyers for the second respondent Crown Law for the third respondent