Gray v Hopcroft & Anor

[2000] QCA 144

SUPREME COURT OF QUEENSLAND

CITATION:

Gray v Hopcroft & Anor [2000] QCA 144

PARTIES:

PATRICIA MAY GRAY
(applicant/plaintiff)
v
STANLEY CECIL HOPCROFT
(defendant)
STATE OF QUEENSLAND
(respondent/second defendant)

FILE NO/S:

Appeal No 1947 of 2000
DC No 31 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2000

JUDGES:

Thomas JA, Ambrose and Helman JJ
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against orders of the District Court 4 February 2000 dismissed
Application for leave to appeal against orders made for costs dismissed

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CONDUCT – where concession made at various stages of application

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where applicant with a disability residing in North Queensland refused to attend examination by psychiatrist in Brisbane – whether respondent required  to provide a panel of examiners in North Queensland

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – OTHER MATTERS – where exercise of discretion by chamber judge in an interlocutory matter

Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170, considered
Lawrence v Oil Drilling and Exploration (Qld) Pty Ltd v Anor (1967) QWN 4, considered

COUNSEL:

J Webb for the applicant
P Keane QC, with J Dalton for the respondent

SOLICITORS:

Arnell & Cooper for the applicant
Minter Ellison for the respondent

1. THOMAS JA:  I agree with the reasons of and orders proposed by Ambrose J.

1. AMBROSE J:  This is an application by a plaintiff for leave to appeal against an interlocutory order made by a chamber judge in the District Court on 4 February 2000.

1. The principle upon which this court will grant leave to appeal against an order of this kind is stated succinctly in the majority judgment in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc and Anor (1981) 148 CLR 170 at 177 in the following terms –

“Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.  Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task.  Not only must there be error of principle but the decision appealed from must work a substantial injustice to one of the parties.  The opposing view is that such criteria are to be expressed disjunctively.  Cases can be cited in support of both views --.  For ourselves we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.  The circumstances of different cases are infinitely various we would merely repeat with approval the oft cited statement of Sir Frances Jordan in Re the Will of F…