Cook and the West Moreton Regional Health Centre v Blaine

[1996] QCA 285

COURT OF APPEAL  [1996] QCA 285

WILLIAMS J
AMBROSE J
BYRNE J

Appeal No 4996 of 1996

STEPHEN G COOK AND THE WEST MORETON
REGIONAL HEALTH CENTRE             Applicant (Defendant)

and

KAY LORELLE BLAINE                 Respondent (Plaintiff)

BRISBANE

..DATE 08/07/96

JUDGMENT

WILLIAMS J:  In the course of a trial before Judge Robertson sitting as the District Court at Ipswich, an application was made to amend the statement of claim.  The application was made in the course of final addresses.  The statement of claim indicates that the cause of action was negligence of a doctor and a regional hospital with respect to the carrying out of an operation and provision of post-operative care.

It is best that this Court state the cause of action in such broad terms because one of the questions for the learned trial Judge will be to determine the precise issues raised by the pleadings.  As I have said, the plaintiff sought leave to amend the statement of claim in the course of addresses.  Leave was granted after the learned trial Judge heard argument from either side.  He acknowledged that, in the light of the amendments, it might be necessary for the defendants, the applicants in this Court, to adduce further evidence, either by way of further cross-examination of a doctor who had already given evidence, or by way of calling additional evidence.

Prior to the trial continuing, an application was made for leave to appeal to this Court against the order allowing the amendment.  In my view, there is no important question of law or justice raised by the granting of the amendment which could not be adequately addressed on an appeal after the conclusion of the trial.  At that stage the Court would be in possession of all the evidence and, more importantly, would have the benefit of findings of fact made by the learned trial Judge.

It could then be determined whether or not, as contended for by the applicants here, that the amendments raised a completely new case such as deprived them of the opportunity of a fair trial.  One can only reach conclusions on submissions to that effect once findings of fact have been made.  On an appeal such findings could be reviewed in the light of all the evidence.

This is not an appropriate case in which to grant leave to appeal from an interlocutory procedural order made in the course of a trial and prior to the conclusion of the trial.  I would refuse the application.

AMBROSE J:  I agree.

BYRNE J:  The contention that leave to amend the pleadings should have been refused can be agitated after judgment in the proceedings.  In this case, in my opinion, there is no sufficient reason to intercept their progress by permitting an appeal against the exercise of a discretion on a matter of practice and procedure.  I agree in the orders proposed.

WILLIAMS J:  The application will be refused with costs.

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