SUPREME COURT OF QUEENSLAND
CITATION:
Hertess v Adams [2011] QCA 73
PARTIES:
ISOLDE HERTESS
(applicant)
v
DEBORAH JOY ADAMS
(respondent)FILE NO/S:
Appeal No 11929 of 2010
DC No 775 of 2010DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
28 March 2011
JUDGES:
Muir JA, Margaret Wilson AJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
The application for leave to appeal be granted;1.
The appeal be allowed;2.
The orders at first instance be set aside;3.
The application filed in the proceedings on 10 June 2011 be dismissed; and4.
The respondent pay the applicant’s costs of the proceedings including the costs of this appeal.5.
CATCHWORDS:
LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED – where applicant plastic surgeon was alleged to have failed to provide the respondent with adequate information as to the risks associated with the surgery – where claim brought by respondent some three years and nine months outside the limitation period – where primary judge granted an extension of time with which to lodge an appeal pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) – where primary judge assessed prejudice created by the delay in commencing proceedings by comparing the respondent’s position during the limitation period with its position at the time of the application, not by reference to the circumstances existing at the time of the application – whether exercise of discretion by primary judge miscarried
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where primary judge approached the exercise of his discretion on the basis that the applicant bore the onus of proof in establishing “some other matter justifying the exercise of a discretion against the granting of an extension” – whether discretion of primary judge miscarried
District Court of Queensland Act 1967 (Qld), s 118(3)
Limitation of Actions Act 1974 (Qld), s 31Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, applied
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143, cited
Parsons v Doukas (2001) 52 NSWLR 162; [2001] NSWCA 128, cited
Pickering v McArthur[2005] QCA 294, cited
Sauer v Allianz Australia Insurance Ltd (2006) 47 MVR 220; [2006] NSWCA 364, cited
Smith v Morton (2004) 40 MVR 347; [2004] NSWCA 84, citedCOUNSEL:
G N Diehm for the applicant
G R Mullins for the respondentSOLICITORS:
Minter Ellison Lawyers for the applicant
Trilby Misso Lawyers for the respondent
[1] MUIR…
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- AGLC
- Hertess v Adams [2011] QCA 73
- Case
- [2011] QCA 73
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case were whether the primary judge correctly exercised the discretion to extend the limitation period under the relevant statute and whether the primary judge appropriately assessed the prejudice caused by the delay. The appeal hinged on the primary judge's assessment of prejudice by comparing the respondent's position during the limitation period with their position at the time of the application, rather than the circumstances existing at the time of the application. Additionally, the court had to consider whether the primary judge correctly applied the principle that the onus was on the applicant to establish "some other matter justifying the exercise of a discretion against the granting of an extension."
The court found that the primary judge's exercise of discretion miscarried because the assessment of prejudice was flawed. The primary judge compared the respondent's position during the limitation period to its position at the time of the application, rather than assessing the prejudice based on the circumstances at the time of the application. This approach was inconsistent with the principles governing the exercise of discretion. Furthermore, the court held that the primary judge misapplied the principle that the onus was on the applicant to establish "some other matter justifying the exercise of a discretion against the granting of an extension." The appellate court concluded that the primary judge had not properly applied the legal principles, leading to the setting aside of the orders at first instance.
The final orders of the court were that the application for leave to appeal was granted, the appeal was allowed, the orders at first instance were set aside, the application filed in the proceedings on 10 June 2011 was dismissed, and the respondent was ordered to pay the applicant's costs of the proceedings, including the costs of the appeal. This decision underscores the importance of correctly applying the principles governing the exercise of discretion in limitation of actions cases, particularly in relation to the assessment of prejudice and the onus of proof.
Orders
Orders of the court
The application for leave to appeal be granted;1.
The appeal be allowed;2.
The orders at first instance be set aside;3.
The application filed in the proceedings on 10 June 2011 be dismissed; and4.
The respondent pay the applicant’s costs of the proceedings including the costs of this appeal.5.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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