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James v Hickling

James v Hickling

Case [2004] WASC 235 16 November 2004

Jurisdiction

Standing

Breach of Fiduciary Duty

Conflict of Interest

Compensatory Damages

Civil Litigation & Procedure

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JAMES -v- HICKLING & ANOR [2004] WASC 235

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 235
Case No:	CIV:1361/2004	Heard:	28 JULY 2004
Coram:	MASTER SANDERSON	Delivered:	16/11/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to amend in terms of minute refused Limited leave to replead
Category:	A
PDF Version

Parties:	KAREN DAWN JAMES RALPH HICKLING PETER EMANUEL PETROS
Catchwords:	Practice and procedure Application for leave to amend statement of claim Objection as to form of amendment of statement of claim Whether leave ought be granted to plead cause of action when amount likely to be recovered is minimal
Legislation:	Nil
Case References:	Breen v Williams (1996) 186 CLR 71 Hall v Petros [2004] WADC 87 Aequitas v AEFC (2001) 19 ACLC 1006 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Cubillo v Commonwealth of Australia (1999) 89 FCR 528 Dempster v Mallina Holdings Ltd [1994] 13 WAR 124 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 Hodgkinson v Simms [1994] 3 SCR 377 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Johnson v Department of Community Services [1999] NSWSC 641 Lovejoy & Ors v Carp [1999] VSC 223 Munt v State of Queensland and Salvation Army (Qld Property Trust) [1996] QSC 241 Nocton v Lord Ashburton [1914] AC 932 Norberg v Wynrib (1992) 92 DLR (4th) 449 Nguyen v Nguyen (1990) 169 CLR 245 Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 Taylor v McGillivray (1993) 110 DLR (4th) 64 Terrace Counsellors Pty Ltd v Arnold [2002] WASC 90 Warman International Ltd v Dwyer (1995) 182 CLR 544 WA Fork Truck Distributors Pty Ltd v Jones [2003] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JAMES -v- HICKLING & ANOR [2004] WASC 235 CORAM : MASTER SANDERSON HEARD : 28 JULY 2004 DELIVERED : 16 NOVEMBER 2004 FILE NO/S : CIV 1361 of 2004 BETWEEN : KAREN DAWN JAMES

Plaintiff

AND

RALPH HICKLING

First Defendant

PETER EMANUEL PETROS

Second Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim - Objection as to form of amendment of statement of claim - Whether leave ought be granted to plead cause of action when amount likely to be recovered is minimal

Legislation:

Nil

Result:

Leave to amend in terms of minute refused

(Page 2)

Limited leave to replead

Category: A

Representation:

Counsel:

Plaintiff : Ms F A Stanton

First Defendant : Mr G J Pynt

Second Defendant : Mr G J Pynt

Solicitors:

Plaintiff : McCallum Donovan Sweeney

First Defendant : Pynt & Partners

Second Defendant : Pynt & Partners

Case(s) referred to in judgment(s):

Breen v Williams (1996) 186 CLR 71
Hall v Petros [2004] WADC 87

Case(s) also cited:

Aequitas v AEFC (2001) 19 ACLC 1006
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Cubillo v Commonwealth of Australia (1999) 89 FCR 528
Dempster v Mallina Holdings Ltd [1994] 13 WAR 124

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 James v Hickling

Details

AGLC: James v Hickling [2004] WASC 235
Case: [2004] WASC 235
Decision Date

CaseChat Overview and Summary

The plaintiff, Karen Dawn James, sought to amend her statement of claim against the defendants, Ralph Hickling and Peter Emanuel Petros, to include additional causes of action in relation to a medical negligence claim. The defendants opposed the application on the grounds that the proposed amendments were defective both in form and substance. The defendants argued that the proposed pleading of a fiduciary relationship was improper, as fiduciary duties are always prescriptive and cannot be proscriptive. They further argued that the claim for breach of fiduciary duty was essentially a claim for damages for personal injuries, which should be pursued under tort and contract law rather than equity.

The court considered the objections raised by the defendants. While the pleading of the fiduciary duty was indeed defective as it appeared to allege a positive duty rather than a proscriptive duty, the court saw potential for the claim to be recast to properly allege a conflict of interest, which would give rise to a breach of fiduciary duty. However, the court also noted that even if the claim could be properly pleaded, it would likely result in a nominal recovery for the plaintiff, as the defendant stood to earn only around $75 in royalties from the procedures in question.

In balancing the interests of justice and the need for timely disposition of litigation, the court decided that it was not appropriate to allow the claim to proceed, as it would unnecessarily complicate the proceedings without any real benefit to the plaintiff. The court ultimately refused leave to amend the statement of claim and to plead the claim for breach of fiduciary duty.

Orders