Dempsey v Hack - [2005] QCA 34

SUPREME COURT OF QUEENSLAND

CITATION:

Dempsey v Hack [2005] QCA 34

PARTIES:

PAUL ANTHONY DEMPSEY
(plaintiff/respondent)
v
JOHN MICHAEL HACK
(defendant/applicant)

FILE NO/S:

Appeal No 8721 of 2004
DC No 2148 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2005

JUDGES:

de Jersey CJ, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where Registrar renewed respondent’s claim for 12 months – where Judge did not explicitly conclude that there was good reason to renew the claim – where Judge inferred applicant gave no warning of possible adverse effects of medical procedure – where applicant contends Judge gave too much weight to respondent’s affidavit – where applicant contends time delay in bringing claim would prejudice applicant’s case – whether order of Registrar renewing claim for 12 months should be set aside

District Court of Queensland Act 1967 (Qld), s 118(3)
Uniform Civil Procedure Rules 1999 (Qld), r 24

Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513, applied

COUNSEL:

G W Diehm for the applicant
A J H Morris QC for the respondent

SOLICITORS:

Flower & Hart for the applicant
Londy Lawyers for the respondent

de JERSEY CJ: The applicant seeks leave to appeal against an interlocutory order made in the District Court, dismissing an application under r 16(d) of the Uniform Civil Procedure Rules to set aside an order made ex parte by the Registrar renewing a claim for 12 months from 31 May 2003. It is a claim against the applicant for damages for his alleged negligence. The proceeding before the District Court proceeded as a hearing de novo. It being an interlocutory order, leave is necessary because of s 118(3) of the District Court of Queensland Act 1967 (Qld).

The claim arises from a consultation between the applicant medical practitioner and the respondent on 1 June 1999, in relation to severe pain in the respondent’s anal area, and a procedure, either a colonoscopy or a sigmoidoscopy, carried out by the applicant upon the respondent on 8 June 1999. The respondent filed a claim and statement of claim on 31 May 2002, eight days before the expiration of the limitation period. The claim became stale on 31 May 2003. Five months after that, the respondent retained new solicitors. Then on 24 November 2003, on the respondent’s application, the Registrar renewed the claim.

Addressing the relevant issues, as discussed in Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513, [4], the learned Judge noted that the delay between the procedure and the application to the…

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 Dempsey v Hack

Details

AGLC: Dempsey v Hack [2005] QCA 34
Case: [2005] QCA 34
Decision Date: 18 February 2005

CaseChat Overview and Summary

The applicant, Dempsey, brought an application in the Federal Circuit Court of Australia for leave to appeal an interlocutory decision made by the Registrar of the Court. The Registrar had renewed the respondent's claim for a period of twelve months. Dempsey contended that the Judge did not explicitly conclude that there was good reason to renew the claim, and that the Judge had given too much weight to the respondent's affidavit. Dempsey also argued that the delay in bringing the claim would prejudice their case.

The court was required to determine whether the Registrar's decision to renew the claim should be set aside. The court considered whether the Judge had given proper weight to Dempsey's arguments, and whether the delay in bringing the claim would prejudice Dempsey's case. The court also considered whether the Registrar had acted within their powers in renewing the claim for twelve months.

The court found that the Registrar's decision to renew the claim was not an appealable interlocutory decision, and therefore Dempsey's application for leave to appeal was dismissed. The court held that the Judge had given proper weight to Dempsey's arguments, and that the delay in bringing the claim would not prejudice Dempsey's case. The court also held that the Registrar had acted within their powers in renewing the claim for twelve months. The court dismissed the application for leave to appeal with costs to be assessed.

Orders

Orders of the court

Application for leave to appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dempsey v Hack [2005] QCA 34
PARTIES:	PAUL ANTHONY DEMPSEY (plaintiff/respondent) v JOHN MICHAEL HACK (defendant/applicant)
FILE NO/S:	Appeal No 8721 of 2004 DC No 2148 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2005
JUDGES:	de Jersey CJ, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where Registrar renewed respondent’s claim for 12 months – where Judge did not explicitly conclude that there was good reason to renew the claim – where Judge inferred applicant gave no warning of possible adverse effects of medical procedure – where applicant contends Judge gave too much weight to respondent’s affidavit – where applicant contends time delay in bringing claim would prejudice applicant’s case – whether order of Registrar renewing claim for 12 months should be set aside District Court of Queensland Act 1967 (Qld), s 118(3) Uniform Civil Procedure Rules 1999 (Qld), r 24 Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513, applied
COUNSEL:	G W Diehm for the applicant A J H Morris QC for the respondent
SOLICITORS:	Flower & Hart for the applicant Londy Lawyers for the respondent