Cathy O'Connell v Geoffrey Barnett - [2014] HCASL 195

CATHY O'CONNELL
v
GEOFFREY BARNETT
[2014] HCASL 195
M63/2014

On 7 December 2006, the applicant underwent surgery performed by the respondent. She was very dissatisfied with the results and subsequently sued the respondent in contract and tort in the County Court of Victoria. Among other things, the applicant alleged that the respondent breached an agreement between the parties that the respondent would undertake a different surgical procedure. The applicant also alleged that the respondent was negligent in undertaking an inappropriate procedure and that the respondent failed to warn her as to the risks of the surgery performed by him.
On 15 October 2013, the County Court (Judge O’Neill) gave judgment for the respondent with costs. On 7 April 2014, the applicant sought leave of the Court of Appeal of the Supreme Court of Victoria to extend the time within which to appeal against the orders made by the County Court and, if leave were granted, to appeal against those orders. The single ground of appeal pursued in the Court of Appeal was that the trial judge failed to discharge his duty to ensure a fair trial.
On 20 June 2014, the Court of Appeal (Ashley, Mandie and Beach JJA) granted leave to extend time and dismissed the appeal. All members of the Court of Appeal were satisfied that the trial judge had ensured that the applicant had a fair trial and gave the applicant every opportunity to explain her case and to give her evidence in support of that case. The applicant now seeks special leave to appeal to this Court.
The applicant previously made an application in this Court seeking a stay of various costs orders. On 8 September 2014, Crennan J dismissed that application and ordered that the costs of that application be the respondent's costs in this application for special leave to appeal.
As the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
The applicant's draft notice of appeal does not set out clear and intelligible grounds of appeal and the applicant's written summary of argument develops no question of law which would warrant a grant of special leave. Furthermore, in light of the limited nature of the single ground of appeal pursued before the Court of Appeal, it is inappropriate to consider the applicant's submissions which challenge the factual findings made in the County Court. There is no reason to doubt the conclusions reached by the Court of Appeal, which involved the application of settled principles to the facts. An appeal to this Court would enjoy no prospects of success.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
15 October 2014
S.M. Crennan

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: [2014] HCASL 195
Decision Date

CaseChat Overview and Summary

The case of Cathy O'Connell v Geoffrey Barnett concerns a medical malpractice claim against the respondent, Geoffrey Barnett, who performed surgery on the applicant, Cathy O'Connell, on 7 December 2006. The applicant alleged that the respondent breached an agreement regarding the surgical procedure and that he was negligent in performing an inappropriate procedure without adequately warning her of the risks involved. The County Court of Victoria dismissed the applicant's claim, and the subsequent appeal to the Court of Appeal of the Supreme Court of Victoria was also unsuccessful. The applicant now seeks special leave to appeal to the High Court of Australia. The central issue before the Court was whether the applicant's application for special leave should be granted. The Court held that the applicant's draft notice of appeal did not set out clear and intelligible grounds of appeal, and her written summary of argument did not develop any question of law warranting a grant of special leave. The Court also noted that it would be inappropriate to consider the applicant's submissions that challenged the factual findings made in the County Court, given the limited nature of the single ground of appeal pursued before the Court of Appeal. In light of these factors, the Court concluded that an appeal to the High Court would enjoy no prospects of success. Consequently, the application for special leave to appeal was dismissed, and the Registrar was directed to draw up, sign and seal an order dismissing the application with costs.

Orders