Kitchen v Quinlivan - [2025] QSC 176

SUPREME COURT OF QUEENSLAND

CITATION:

Kitchen v Quinlivan [2025] QSC 176

PARTIES:

DAVID NORMAN KITCHEN

(first plaintiff)

CQ EYE PTY LTD ACN 139 232 223 AS TRUSTEE FOR THE CQ EYE TRUST
(second plaintiff)

v
JULIE ANNE QUINLIVAN

(defendant)

FILE NO/S:

BS8516/21

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

23 July 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2025

JUDGE:

Treston J

ORDERS:

The orders of the court are that the following paragraphs are inadmissible:

1.   paragraph 27 of the affidavit of Georgia O’Keefe;

2.   paragraph 33 of the affidavit of Margaret Parker;

3. paragraph 38(d) of the affidavit of Julie Anne Quinlivan but limited to - “As I understand, the rule was introduced because legislators were concerned high volume servicing may result in a lack of clinical input. Whilst this same clause was not in place for non-general practitioner specialist medical practitioners, the number of services per day across so many days a year raised a similar concern over a lack of clinical input.”;

4.   paragraph 42 of the affidavit of Julie Anne Quinlivan;

5.   paragraphs 59, 60 and 86 of the affidavit of Julie Anne Quinlivan (limited to those parts in [25] below), but with leave to lead evidence substantially in accordance with [26] below; and

6.   paragraphs 70, 72, 73, 74 and 89 of the affidavit of Julie Anne Quinlivan (limited to those parts in [53] below.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – OBJECTIONS – where at the commencement of trial both parties raised a number of objections to evidence – where the plaintiffs (a doctor and his practice entity) bring a claim against the defendant (director of the Professional Services Review agency (PSR agency)) for misfeasance in public office – where the plaintiffs object to the evidence of several witnesses whose evidence they contend goes towards establishing those witnesses “usual practice”, of either themselves or the PSR agency which they worked for, and such evidence is speculative or conclusionary – where the plaintiffs object to evidence on the basis of issue estoppel or res judicata – where the defendant objects to an affidavit in the plaintiffs’ evidence on the basis that it is irrelevant on the pleadings – where the defendant objects to an expert report provided by the plaintiffs on the basis that it is inadmissible opinion evidence that goes to the legal question before the court – whether the objections are upheld

ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – where it is admitted on the pleadings that the defendant consented to a declaration in prior Federal Court proceedings – whether there is an issue estoppel or res judicata in relation to the defendant’s declaration in the Federal Court proceedings such that the defendant cannot now give evidence in respect of that declaration

Health Insurance Act 1973 (Cth)
Judiciary Act 1903 (Cth)

Blair v Curran (1939) 62 CLR 464
Connor…

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 Kitchen v Quinlivan

Details

AGLC: Kitchen v Quinlivan [2025] QSC 176
Case: [2025] QSC 176
Decision Date: 23 July 2025 (ex tempore)

CaseChat Overview and Summary

In the case of Kitchen v Quinlivan, the plaintiffs, consisting of a doctor and his practice entity, filed a claim against the defendant, who is the director of the Professional Services Review agency (PSR agency), for misfeasance in public office. The defendant raised objections to the plaintiffs' evidence, while the plaintiffs objected to several witnesses' evidence, arguing that it was speculative or conclusionary and went towards establishing the witnesses' "usual practice". The plaintiffs also objected to evidence on the basis of issue estoppel or res judicata, and the defendant objected to an affidavit and an expert report provided by the plaintiffs.

The court had to decide on the admissibility of evidence, particularly on the objections raised by both parties. The court considered the objections raised by both parties to the evidence of the witnesses and the affidavits. The court also had to determine whether the defendant's declaration in prior Federal Court proceedings amounted to an issue estoppel or res judicata, and whether it prevented the defendant from giving evidence in respect of that declaration.

The court ruled that the objections raised by the plaintiffs were upheld, and the evidence of several witnesses was inadmissible. The court found that the evidence of usual practice was largely unobjectionable, but the witnesses went further to depose that whilst not having any recollection of having undertaken a specific step on a particular day they "would have" done that step having regard to that usual practice. The court held that evidence of usual practice is admissible, but the drawing of the inference is ultimately for the court. The court also found that the defendant's declaration in prior Federal Court proceedings did not amount to an issue estoppel or res judicata, and the defendant could give evidence in respect of that declaration.

The court ordered that certain paragraphs of affidavits and evidence were inadmissible, while others were admissible with leave to lead evidence substantially in accordance with the court's directions.

Orders

Orders of the court

The orders of the court are that the following paragraphs are inadmissible:

1. paragraph 27 of the affidavit of Georgia O’Keefe;

2. paragraph 33 of the affidavit of Margaret Parker;

3. paragraph 38(d) of the affidavit of Julie Anne Quinlivan but limited to - “As I understand, the rule was introduced because legislators were concerned high volume servicing may result in a lack of clinical input. Whilst this same clause was not in place for non-general practitioner specialist medical practitioners, the number of services per day across so many days a year raised a similar concern over a lack of clinical input.”;

4. paragraph 42 of the affidavit of Julie Anne Quinlivan;

5. paragraphs 59, 60 and 86 of the affidavit of Julie Anne Quinlivan (limited to those parts in [25] below), but with leave to lead evidence substantially in accordance with [26] below; and

6. paragraphs 70, 72, 73, 74 and 89 of the affidavit of Julie Anne Quinlivan (limited to those parts in [53] below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The matter has to be determined quickly to enable the trial to proceed. For that purpose, the court did not sit today, but the trial will resume tomorrow.The plaintiffs’ objections to the defendant’s evidence – “usual practice” I will return to the individual objections shortly, but I say something about the broad nature of the objections at the outset. The first objection is in relation to the evidence of several of the witnesses whose evidence is said to go towards establishing those witnesses “usual practice” of either themselves or the organisation for whom they worked, the Professional Services Review agency (“PSR agency”). The plaintiffs submit that evidence of usual practice is largely unobjectionable but several of the witnesses go further to depose that whilst not having any recollection of having undertaken a specific step on a particular day they “would have” done that step having regard to that usual practice. The plaintiffs refer me to Gooley v NSW Rural Assistance Authority (No 3),[1] where Parker J said the following at [118] to [119]:“Strictly speaking, it is not admissible for a witness who cannot remember doing something on a particular day to give evidence directly that, in accordance with his usual practice, he would have done it. What is admissible is evidence of the practice (which can be given by the witness or anyone else having sufficient knowledge of that practice), from which the Court can be invited to infer that the witness did actually so act on the day in question: see Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721, per Asprey JA, with whom Mason JA agreed; R v Gordon (No 4) [2016] NSWSC 312 at [14]-[15], [20].The key point is that the drawing of the inference is ultimately for the court. Whether the court draws the inference depends upon how compelling the evidence makes it. Where the business practice in question involves a step which is a mechanical one and does not involve any discretion, it may readily be possible to draw the inference. But where the usual practice described in the evidence is neither regular nor uniform, the court can have less confidence that the step in question was actually taken on the occasion in question. In such a case, the evidence of usual practice may in truth be no more than the witness’ reconstruction, or hope, about how he or she would have behaved in the circumstances of the case.”[1][2019] NSWSC 1314. Further, the plaintiffs rely upon R v Gordon (No 4),[2] where Campbell J considered the statement of Asprey JA (with whom Mason JA agreed) in Connor v Blacktown District Hospital,[3] and stated at [15]:“…Evidence of a witness that “I believe I did this because I always do it”, is of its nature inscrutable and, therefore, difficult to test. In my view the proper approach is that of Asprey JA, agreed to by Mason JA, which essentially treats evidence of practice as a species of circumstantial evidence. Evidence of practice lays a foundation for an inference that the practice was followed on a particular day. That is the proper basis of its admissibility.”[2][2016] NSWSC 312.[3][1971] 1 NSWLR 713 at 721.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kitchen v Quinlivan [2025] QSC 176
PARTIES:	DAVID NORMAN KITCHEN (first plaintiff) CQ EYE PTY LTD ACN 139 232 223 AS TRUSTEE FOR THE CQ EYE TRUST (second plaintiff) v JULIE ANNE QUINLIVAN (defendant)
FILE NO/S:	BS8516/21
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	23 July 2025 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2025
JUDGE:	Treston J
ORDERS:	The orders of the court are that the following paragraphs are inadmissible: 1. paragraph 27 of the affidavit of Georgia O’Keefe; 2. paragraph 33 of the affidavit of Margaret Parker; 3. paragraph 38(d) of the affidavit of Julie Anne Quinlivan but limited to - “As I understand, the rule was introduced because legislators were concerned high volume servicing may result in a lack of clinical input. Whilst this same clause was not in place for non-general practitioner specialist medical practitioners, the number of services per day across so many days a year raised a similar concern over a lack of clinical input.”; 4. paragraph 42 of the affidavit of Julie Anne Quinlivan; 5. paragraphs 59, 60 and 86 of the affidavit of Julie Anne Quinlivan (limited to those parts in [25] below), but with leave to lead evidence substantially in accordance with [26] below; and 6. paragraphs 70, 72, 73, 74 and 89 of the affidavit of Julie Anne Quinlivan (limited to those parts in [53] below.
CATCHWORDS:	EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – OBJECTIONS – where at the commencement of trial both parties raised a number of objections to evidence – where the plaintiffs (a doctor and his practice entity) bring a claim against the defendant (director of the Professional Services Review agency (PSR agency)) for misfeasance in public office – where the plaintiffs object to the evidence of several witnesses whose evidence they contend goes towards establishing those witnesses “usual practice”, of either themselves or the PSR agency which they worked for, and such evidence is speculative or conclusionary – where the plaintiffs object to evidence on the basis of issue estoppel or res judicata – where the defendant objects to an affidavit in the plaintiffs’ evidence on the basis that it is irrelevant on the pleadings – where the defendant objects to an expert report provided by the plaintiffs on the basis that it is inadmissible opinion evidence that goes to the legal question before the court – whether the objections are upheld ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – where it is admitted on the pleadings that the defendant consented to a declaration in prior Federal Court proceedings – whether there is an issue estoppel or res judicata in relation to the defendant’s declaration in the Federal Court proceedings such that the defendant cannot now give evidence in respect of that declaration Health Insurance Act 1973 (Cth) Judiciary Act 1903 (Cth) Blair v Curran (1939) 62 CLR 464 Connor…