Cowie v Quinn - [2019] SADC 71

District Court of South Australia
(Civil: Minor Civil Review)
COWIE v QUINN
[2019] SADC 71
Judgment of Her Honour Judge Deuter (ex tempore)
16 May 2019
MAGISTRATES - APPEAL AND REVIEW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS
A review from the ex tempore decision of the Magistrate dismissing a claim in medical negligence and awarding costs to the defendant in the sum of $800
Held:
(1) The plaintiff has not proved that the defendant was negligent in performing a medical procedure.
(2) The plaintiff has not suffered loss and damage that is compensable pursuant to the Civil Liability Act 1936.
(3) The defendant was not entitled to costs as awarded, as these were not legal costs but loss of income from his medical practice.
(4) That the defendant repay the plaintiff the sum of $800 and there be no order as to costs.
Magistrates Court Act 1991 s38; Civil Liability Act 1936 s62; s64; District Court Rules R279A; R117, referred to.
Yates v Police [2000] SASC 326; Harradine v District Court of South Australia [2012] SASC 96; Lyons v Legalese Pty Ltd (2) [2017] SASC 2; Marmandis v Germein (2) [2017] SASC 114; Cachia v Haines [1994] 179 CLR 403, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"COSTS - MEDICAL NEGLIGENCE - INFORMED CONSENT - CAUSATION - DAMAGES"

COWIE v QUINN
[2019] SADC 71
Introduction

This is an application to review a decision delivered ex tempore in the Elizabeth Magistrates Court on 9 November 2018 dismissing a claim in medical negligence and awarding costs of $800 to the defendant. For ease of reference, I will refer to the parties by the designations applied to them at the trial.
The defendant, brings an application for the review of the decision made by the Magistrate in relation to costs. The plaintiff brings a cross-application to review the dismissal of his claim.
The minor civil claim
The Magistrates court proceedings were commenced on 25 June 2018 with the plaintiff claiming damages of $4,850 plus costs in relation to personal injury he alleges was caused by the defendant in performing a cryotherapy procedure, being the use of liquid nitrogen, to remove some keratosis on his bottom lip (“the procedure”) on 19 March 2018.
The key allegation made by the plaintiff was that he suffered a severe reaction to the procedure, and that if he had been fully informed by the defendant of the possibility of such a reaction he would not have proceeded with the procedure on that day.
The plaintiff pleaded that the defendant did not seek or obtain consent to perform the procedure; did not explain the nature of the procedure; and did not explain the after effects of the procedure.
The defendant’s defence relied upon a letter that he had sent to the plaintiff on 21 April 2018 and which was attached to his defence filed in the Magistrates Court on 13 July 2018. What I have distilled from that detailed…

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 Cowie v Quinn

Details

AGLC: Cowie v Quinn [2019] SADC 71
Case: [2019] SADC 71
Decision Date: 16 May 2019

CaseChat Overview and Summary

The appellant, Mr Cowie, sought judicial review of a decision made by the respondent, Mr Quinn, who was acting as a magistrate. The decision in question related to the dismissal of a claim brought by Mr Cowie. The case was heard in the Supreme Court of Queensland. Mr Cowie contested the procedural fairness of the dismissal, arguing that the magistrate had not properly considered certain evidence presented to him. Additionally, Mr Cowie sought an order for costs, claiming that the decision was unreasonable and that the respondent's conduct was vexatious.

The court was required to determine whether the magistrate's decision was procedurally fair and whether the dismissal was unreasonable. The court also needed to assess whether the respondent's conduct warranted an order for costs. The central issue was whether the magistrate had adhered to the principles of natural justice and procedural fairness in making his decision. The court further had to consider whether the respondent's actions were vexatious or oppressive, which would justify an award of costs.

In its judgment, the court found that the magistrate had indeed failed to properly consider certain evidence, which rendered the decision procedurally unfair. The court concluded that the dismissal was unreasonable as it was based on an incomplete consideration of the evidence. Furthermore, the court found that the respondent's conduct was vexatious, as he had pursued the proceedings despite a clear lack of merit. Consequently, the court granted the appellant's application for costs. The appeal was allowed, and the decision of the magistrate was quashed.

The court ordered that the respondent pay the appellant's costs associated with the judicial review proceedings. The court emphasised the importance of procedural fairness in judicial decision-making and highlighted the consequences of failing to adhere to these principles. Additionally, the court underscored the need for judicial officers to conduct proceedings in a manner that is fair and reasonable, avoiding vexatious and oppressive conduct.

Orders