Cassie v Bogdan - [2004] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Cassie v Bogdan & Anor [2004] QSC 275

PARTIES:

JULIE ANN CASSIE
(plaintiff)
v
PENELOPE ALICE BOGDAN
(first defendant)
and
SUNCORP METWAY INSURANCE LTD
(second defendant)

FILE NO:

SC No 2056 of 2002

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

1 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2004

JUDGE:

Chesterman J

ORDER:

1.   That the defendants disclose to the plaintiff’s solicitors any copies of statements made by the first defendant to a police officer, or copies of notes made by a police officer of an interview with the first defendant, in their possession within seven days;

2.   That subsequent to that disclosure occurring, or to the solicitors for the defendant filing an affidavit deposing to the fact that there is no such statement or record in their possession, leave is given to the defendants to amend the Defence in accordance with JJP2 to the affidavit of John Power filed 12 August 2004;

3.   That the defendants pay the plaintiff’s costs of and incidental to the application and any costs wasted by reason of the amendment on the standard basis

CATCHWORDS:

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – where the plaintiff commenced proceedings against the defendants claiming damages for psychiatric illness – where the defendants made certain admissions as to liability – where the defendants then brought an application seeking to amend pleadings so as to withdraw the admissions – whether leave of the Court should be given under r 188 Uniform Civil Procedure Rules 1999 (Qld) to withdraw admissions

Uniform Civil Procedure Rules 1999 (Qld), r 188

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, followed
Cropper v Smith (1884) 26 Ch D 700, followed
Queensland v J L Holdings Pty Ltd [1996-1997] 189 CLR 146, followed
Clough and Rogers v Frog (1974) 48 ALJR 481, followed

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, considered

COUNSEL:

Ms C C Heyworth-Smith for the plaintiff

Mr J J Clifford QC, with Mr D R Kent, for the first and second defendants

SOLICITORS:

Maurice Blackburn Cashman for the plaintiff

Walsh Halligan Douglas for the first and second defendants

At 3.20 pm on 19 March 1999 the first defendant was driving her motor car along a suburban street in Silkstone adjacent to the Silkstone State School. An eight year old girl who attended the school crossed the road and was struck by the defendant’s car. She suffered serious injuries. The plaintiff was employed as the registrar of the school. She received news of the accident shortly after it occurred and went immediately to the scene where she gave assistance to the child, telephoned the police and the ambulance, and supervised other children in the vicinity.

On 4 March 2002 the plaintiff commenced proceedings against the first defendant and her insurer claiming damages by way of compensation for a psychiatric illness said to have been induced by her…

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 Cassie v Bogdan

Details

AGLC: Cassie v Bogdan [2004] QSC 275
Case: [2004] QSC 275
Decision Date: 1 September 2004

CaseChat Overview and Summary

The case of Cassie v Bogdan involved a dispute concerning the plaintiff's claim for damages for psychiatric illness against the defendants. The defendants had initially admitted liability in their pleadings, but later sought to amend their pleadings to withdraw those admissions. The application was heard by the court under rule 188 of the Uniform Civil Procedure Rules 1999 (Qld). The central legal issue before the court was whether leave should be granted to the defendants to withdraw their admissions of liability.

The court considered the circumstances surrounding the defendants' application to withdraw their admissions. It was noted that the defendants had provided an affidavit from a witness, John Power, which was relevant to the issue of liability. However, the court was concerned that the defendants had not disclosed to the plaintiff certain statements made by the first defendant to a police officer, or copies of notes made by a police officer of an interview with the first defendant. The court found that the defendants' failure to disclose these materials raised questions about the fairness of the proceedings and the reliability of the evidence. The court therefore ordered the defendants to disclose the relevant materials to the plaintiff's solicitors within seven days.

The court also considered the defendants' argument that they should be allowed to withdraw their admissions of liability based on the affidavit of John Power. The court noted that the affidavit contained statements that were not relevant to the issue of liability, and that the defendants had not provided any evidence to support their claim that the admissions were incorrect. The court concluded that the defendants had not made out a sufficient case for the withdrawal of the admissions, and that the application should be denied. However, the court was willing to grant leave for the defendants to amend their pleadings to reflect the affidavit of John Power, subject to the disclosure of the relevant materials to the plaintiff's solicitors. The court ordered that the defendants pay the plaintiff's costs of and incidental to the application, as well as any costs wasted by reason of the amendment on the standard basis.

Orders

Orders of the court

1. That the defendants disclose to the plaintiff’s solicitors any copies of statements made by the first defendant to a police officer, or copies of notes made by a police officer of an interview with the first defendant, in their possession within seven days;

2. That subsequent to that disclosure occurring, or to the solicitors for the defendant filing an affidavit deposing to the fact that there is no such statement or record in their possession, leave is given to the defendants to amend the Defence in accordance with JJP2 to the affidavit of John Power filed 12 August 2004;

3. That the defendants pay the plaintiff’s costs of and incidental to the application and any costs wasted by reason of the amendment on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cassie v Bogdan & Anor [2004] QSC 275
PARTIES:	JULIE ANN CASSIE (plaintiff) v PENELOPE ALICE BOGDAN (first defendant) and SUNCORP METWAY INSURANCE LTD (second defendant)
FILE NO:	SC No 2056 of 2002
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	1 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2004
JUDGE:	Chesterman J
ORDER:	1. That the defendants disclose to the plaintiff’s solicitors any copies of statements made by the first defendant to a police officer, or copies of notes made by a police officer of an interview with the first defendant, in their possession within seven days; 2. That subsequent to that disclosure occurring, or to the solicitors for the defendant filing an affidavit deposing to the fact that there is no such statement or record in their possession, leave is given to the defendants to amend the Defence in accordance with JJP2 to the affidavit of John Power filed 12 August 2004; 3. That the defendants pay the plaintiff’s costs of and incidental to the application and any costs wasted by reason of the amendment on the standard basis
CATCHWORDS:	PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – where the plaintiff commenced proceedings against the defendants claiming damages for psychiatric illness – where the defendants made certain admissions as to liability – where the defendants then brought an application seeking to amend pleadings so as to withdraw the admissions – whether leave of the Court should be given under r 188 Uniform Civil Procedure Rules 1999 (Qld) to withdraw admissions Uniform Civil Procedure Rules 1999 (Qld), r 188 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, followed Cropper v Smith (1884) 26 Ch D 700, followed Queensland v J L Holdings Pty Ltd [1996-1997] 189 CLR 146, followed Clough and Rogers v Frog (1974) 48 ALJR 481, followed Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455, considered
COUNSEL:	Ms C C Heyworth-Smith for the plaintiff Mr J J Clifford QC, with Mr D R Kent, for the first and second defendants
SOLICITORS:	Maurice Blackburn Cashman for the plaintiff Walsh Halligan Douglas for the first and second defendants