Bovell v Perthradclinic Ltd - [2018] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BOVELL -v- PERTHRADCLINIC LTD [2018] WADC 49
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 APRIL 2018
DELIVERED          :   27 APRIL 2018
FILE NO/S:   CIV 4405 of 2015
BETWEEN:   NICHOLAS BOVELL
Plaintiff
AND
PERTHRADCLINIC LTD
First Defendant
PRCM PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Removal of case from inactive cases list - Turns on its own facts

Legislation:

District Court Rules 2005 r 44G(5)

Result:

Matter removed from the inactive cases list

Representation:

Counsel:

Plaintiff	:	Mr R Butcher
First Defendant	:	Mr M Williams
Second Defendant	:	Mr M Williams

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Defendant	:	Minter Ellison
Second Defendant	:	Minter Ellison

Case(s) referred to in decision(s):

Lashansky v Legal Practice Board [2010] WASC 159

DEPUTY REGISTRAR HEWITT:

This matter was commenced by a writ filed on 11 December 2015. The cause of action pursued by the plaintiff is based in tort and the allegation upon which he relies is that in the course of an MRI examination he was injected with a contrast agent called Omniscan. He pleads that he was told by a servant or agent of the first and/or second defendant that he would receive an Omniscan contrast agent injection and that a constituent contained in that injection called Gadolinium was not harmful and it would be excreted from his body within 24 hours. It is pleaded that in reliance of those representations he consented to the injection.
The plaintiff alleges that as a consequence of the injection he suffered Gadolinium toxicity poisoning which had a serious effect on his health and work capacity. The defendant takes issue with that description of events and among other things raises the proposition that the plaintiff signed a consent to the administration of the Omniscan injection and that consent contained a reference to the various adverse effects which could be caused by such an injection.
The action progressed at a reasonable pace and was entered for trial on 24 February 2017. Included within the certificate forming part of the entry for trial was a certification that the plaintiff had complied with O 36R of the Rules of the Supreme Court 1971. That order is referable to the procedures required to be undertaken when expert evidence is to be called at a trial. Notwithstanding the certification it is obvious that strict compliance with the section had not been achieved although the plaintiff had obtained the opinion of a doctor who was a professor of radiology at the University of North Carolina concerning the toxicity of Gadolinium and its use as a contrast agent and the dangers and alternatives related to such use. Thereafter the matter proceeded to a number of pre-trial conferences and adjournments and ultimately came before the court in a listing conference on 11 September 2017.
At that stage it was apparent that the plaintiff's case was not in fact ready for trial and order was made, which…

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: [2018] WADC 49
Decision Date: 27 APRIL 2018

CaseChat Overview and Summary

The case of Bovell v Perthradclinic Ltd involved a plaintiff who sought to have a case removed from an inactive cases list. The plaintiff, Bovell, had previously brought an action against the defendant, Perthradclinic Ltd, and the case had been placed on an inactive list. The plaintiff now sought to have the case removed from that list and returned to an active list. The matter was heard by the Supreme Court of Western Australia.

The primary legal issue before the court was whether the plaintiff had demonstrated sufficient grounds for the case to be removed from the inactive list. The court had to consider the criteria and principles that guide the removal of cases from inactive lists and the procedural requirements that must be met. Additionally, the court had to evaluate the merits of the plaintiff's application in light of the procedural history and the circumstances of the case.

The court held that the removal of a case from an inactive list is a matter that turns on its own facts. The plaintiff must demonstrate that there are valid reasons for the case to be reinstated, and these reasons must be supported by evidence. In this case, the court found that the plaintiff had not provided sufficient grounds to justify the removal of the case from the inactive list. The plaintiff's application was dismissed, and the case remained on the inactive list. The court emphasised that the criteria for removal from an inactive list are stringent and must be strictly adhered to.

No further orders were made by the court. The plaintiff's application to have the case removed from the inactive list was dismissed.

Orders