Ervin v Brisbane North Regional Health Authority

[1993] QCA 548

IN THE COURT OF APPEAL	[1993] QCA 548
SUPREME COURT OF QUEENSLAND

Appeal No. 232 of 1992

Brisbane

Before The President

[Ervin v. Brisbane North Regional Health Authority]

BETWEEN:

BETTY ERVIN

Applicant

AND:

BRISBANE NORTH REGIONAL HEALTH AUTHORITY and

WILLIAM THOMAS SUGARS

Respondents

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 17/12/93

This is an application for leave to appeal against an order of a District Court Judge refusing an application for an extension of the limitation period within which to bring an action for damages against a medical practitioner for negligence. His Honour held that no material fact of a decisive character came within the means of knowledge of the applicant after 11 February 1992 so that the Plaint was filed out of time.

The matter was argued before me on the basis that it would probably be decided by the judgment of this Court in Haslam v. Queensland Alumina Limited (C.A. No. 162 of 1993; unreported judgment delivered 15 December 1993). While strictly it does not do so, Haslam strongly suggests that, since a refusal to extend time such an order has the practical effect of finally determining the rights of the parties, there is a predisposition in such cases to finding that there is an important question of law or justice involved as required by sub-s. 92(2) of the District Courts Act 1967.

In this case, counsel for the applicant identified the following question as arising for decision; namely, whether a potential plaintiff is entitled in law to wait until he or she has some evidence that negligence has occurred before commencing proceedings or is he or she required to commence proceedings as soon as there is a mere possibility that negligence has occurred.

The material before me does not clearly establish that there is such a question of law necessarily involved in these proceedings but I am prepared to proceed on the assumption that that is so.

Accordingly, consistently I think with Haslam v. Queensland Alumina Limited, I grant the extension of time requested and the application for leave to appeal. The costs of this application are reserved to the Court hearing the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 232 of 1992

Brisbane
[Ervin v. Brisbane North Regional Health Authority]

BETWEEN:

BETTY ERVIN

Applicant

AND:

BRISBANE NORTH REGIONAL HEALTH AUTHORITY and

WILLIAM THOMAS SUGARS

Respondents

The President

Judgment delivered 17/12/93
Reasons for Judgment by the President

APPLICATION FOR LEAVE TO APEAL GRANTED. EXTEND THE TIME WITHIN WHICH TO FILE A NOTICE OF APPEAL TO THE DATE THE NOTICE OF APPEAL IS FILED. THE COSTS OF THIS APPLICATION ARE RESERVED TO THE COURT HEARING THE APPEAL.

CATCHWORDS: APPEAL AND NEW TRIAL - Inferior Courts - appeal from refusal to extend limitation period - whether important question of law or justice - s. 92(2) District Court Act.

Counsel:	R Alldridge for the applicant R Douglas for the respondents
Solicitors:	Bowdens for the applicant Corrs Chambers Westgarth for the respondent

Hearing Date: 5 November 1993