Ferguson v Mules - [2015] HCATrans 272

[2015] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B7 of 2015

B e t w e e n -
KAYLENE JOY FERGUSON
Applicant
and
NANCY LEANNE MULES
Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 10.01 AM

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR J.C. TREVINO, for the applicant. (instructed by K&L Gates)

MR S.L. DOYLE, QC: May it please the Court, I appear with my learned friends, MR R. LYNCH and MR A.S. KATSIKALIS. (instructed by Shine Lawyers)

KIEFEL J: Yes, Mr Kirk.

MR KIRK: Thank you, your Honours. In order to get to the special leave questions in this case it is necessary to spend a bit of time on the facts, so within my 20 minutes that is what I propose to do. Your Honours would appreciate that the trial judge held that the applicant, Dr Ferguson, had breached her duty of care as a GP on 18 and 19 September 2008 in two ways: first, by failing to physically examine the respondent’s neck, and secondly, by failing to inquire about the progress of particular symptoms, headache and flushing of the face.

The issue in dispute in the appeal was right on the cusp, in a sense, of breach and causation – it was ultimately a causation finding, but related to if she had fulfilled her duty in these two respects and done the examination of the neck and asked about the symptoms, would it have made any difference? His Honour the trial judge held that it would not. The majority in the Court of Appeal with perhaps slightly different reasoning took a contrary view and Justice Applegarth dissented.

Can I go first to the trial judge and start by putting it in context because the context here is critical, and if I could take your Honours to page 3 of the application book. We are dealing here, as your Honours will see at paragraph [6], with cryptococcal meningitis, rarer than viral or bacterial meningitis, a bit more common in the tropical north but even there still very rare.

If your Honours turn the page to page 4, paragraph [8], you will see that it is insidious, it is gradual, it is difficult to diagnose because often the symptoms only present late. As to the symptoms, paragraph [9], there are six keys ones: chronic headache; neck stiffness - which is critical here; and then also aversion to light – photophobia; nausea; vomiting and raised temperature.

Now, can I note that my friends in writing seek to throw a bit of sand in the air by drawing some distinction between the latter four and first two. In fact, it is made very clear later in the judgment – and I will take your Honours to this –…

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: [2015] HCATrans 272
Decision Date

CaseChat Overview and Summary

Ferguson (the appellant) brought proceedings against Mules (the respondent) in the Supreme Court of Queensland. The dispute concerned the respondent's alleged breach of a contract for the sale of land. The appellant sought specific performance of the contract, alleging that the respondent had repudiated it. The primary judge dismissed the appellant's claim, and the appellant appealed to the High Court of Australia.

The High Court was required to determine whether the respondent's conduct constituted a repudiation of the contract for the sale of land, thereby entitling the appellant to terminate the contract and claim damages. Specifically, the court considered whether the respondent's failure to settle on the agreed date, coupled with his subsequent conduct, evinced an intention no longer to be bound by the contract.

Kiefel and Keane JJ, in a joint judgment, found that the respondent's conduct did not amount to a repudiation of the contract. They reasoned that while the respondent's failure to settle on the due date was a breach of contract, it did not, in isolation or when considered with his subsequent actions, demonstrate a clear intention to abandon the contract or refuse to perform its essential obligations. The court applied the principles of repudiation, which require an unequivocal indication that a party will not perform their contractual obligations. The appellant's appeal was therefore dismissed.

Orders