Breen v Larkin

[2003] QCA 158

[2003] QCA 158

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA

MUIR J

Appeal No 4012 of 2002

SHARNEE GAYE BREEN (AN INFANT BY

HER NEXT FRIEND GAYE KATHERINE BREEN)	Appellant/Plaintiff
and
MARGARET LARKIN (AS PERSON REPRESENTATIVE
OF PAUL KELSALL LARKIN)	Respondent/Defendant
BRISBANE ..DATE 14/04/2003
JUDGMENT 14042003 T4/IRK13 M/T COA72/2003

1

MR S DI CARLO (instructed by Baker Johnson Lawyers) for the appellant

MR S C WILLIAMS QC, with him MR G W DIEHM (instructed by

Flower and Hart) for the respondent

McPHERSON JA: This action alleging medical negligence by the	10
defendant at the birth of the plaintiff in December 1992 was heard almost exactly a year ago. Judgment was given for the defendant on 24th April 2002 and an appeal was instituted two
weeks later on 3rd May 2002. The appellant's outline of
argument was filed on 13 June 2002 and the respondent's	20
response on 15th of July 2002.
The bound appeal record books were available for collection on
6 January 2003 and the solicitors were so advised by the
Registry. To all intents and purposes the appeal was then	30
ready for hearing today, which is the date for which it was set down for hearing as long ago as 16th of October 2002.
The first intimation that something was going wrong was in a
letter dated 7th April 2003 from solicitors for the appellant.	40
Mr Cooke QC with Mr Di Carlo of counsel had appeared for the plaintiff appellant at the trial. Their names appear on the written outline of argument for the appeal. The letter said that the solicitors had briefed Mr Cooke to appear at the
trial and had forwarded the record books to his Chambers in	50

early March 2003.
14042003 T4/IRK13 M/T COA72/2003 2 JUDGMENT 60

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They said in their letter that they had recently learnt that

Mr Cooke was conducting an inquiry in Papua New Guinea and was

no longer available for the appeal. They had now briefed

Mr Di Carlo to conduct the appeal. However, a search of

Mr Cooke's chambers had succeeded in locating only one of the	10
three volumes of record. They asked for an adjournment as Mr hindered by the absence of the other two volumes.
The solicitors were advised by the Registrar, with my	20
authority, that if those volumes could not be found they could
purchase another two volumes at a cost of $220. On Friday
morning, 11 April, which was last Friday, today being Monday,
a letter was received by the Registry from Mr Di Carlo
explaining that the two replacement books had been collected	30
by his secretary on the preceding Thursday afternoon but without his express authority.
He said he had been away from Chambers since Monday for
personal reasons and had never accepted the brief to appear on	40
the appeal. The most he had done was to say he would consider
it. In any event, he said he would be unable to deliver an
outline of argument on appeal until Monday morning, which is
today, the day of the hearing. In order to do justice to the
appellant it was his "strong preference" that the matter be	50

adjourned "even for a short period" to allow appropriate
preparation.
14042003 T4/IRK13 M/T COA72/2003 3 JUDGMENT 60

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Several comments are apposite. One is that Mr Di Carlo says

he was unaware when he wrote the letter that the outline of

argument had been delivered in his name as long ago as June

last year. It bears his and Mr Cooke's name and it bears his

signature but not that of Mr Di Carlo. Secondly, one would	10
have expected the solicitors to have ensured at some time
prior to a week ago that Mr Cooke was available for the
appeal. Thirdly, the question is, of course, not simply one
of justice only to the appellant plaintiff. The defendant
opposes the adjournment. The incident giving rise to the	20
defendant obstetrician was very ill. He has since died in
action took place over 10 years ago. At the trial the been substituted as respondent to the appeal.
30
Apart from that consideration, however, the respondent
defendant was unable to point to any more specific prejudice
than is common in cases of this kind when an appeal is
adjourned. Such prejudice, it is generally accepted, can be
compensated by an award of costs against the party asking for	40
the adjournment.
Mr Di Carlo has frankly confessed that he is unable to do
justice to his client's case on the appeal this morning. In
the circumstances we are, and for my part somewhat against my	50

inclination, bound to grant an adjournment to a future sitting
of the Court. We understand that it is unlikely that the
matter can be heard now before September of this year.
14042003 T4/IRK13 M/T COA72/2003 4 JUDGMENT 60

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The adjournment must, of course, be on the usual terms as to

costs, which are that the appellant asking for the adjournment must pay. It is evident from the solicitor's letter dated 7th April 2003 concerning further copies of the record books, that the financial position of the appellant is not at all good.	10
On all the material there is a possibility, which I would
regard as not inconsiderable, that the costs, if ordered
against the appellant, will not be paid. In the result I
would make the following orders:	20

(1) the appeal is adjourned to a date to be fixed;

(2) the appellant is to pay the respondent's costs of and

incidental to the adjournment to be assessed; 30

(3) we, as the Court, accept the undertaking of the

solicitors for the appellant to pay the costs thrown

away by this adjournment and we record expressly that

that, of course, includes the costs that we have	40
ordered as well as any other costs thrown away in consequence of the adjournment.

WILLIAMS JA: I agree.

50

MUIR J: I agree.

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5 JUDGMENT 60