Lambert v Webber - [2021] QDC 312

DISTRICT COURT OF QUEENSLAND

CITATION:

Lambert v Webber [2021] QDC 312

PARTIES:

DAVID RODWELL LAMBERT

(plaintiff)

v

SHANNON JOHN WEBBER

(defendant)

FILE NO:

2781 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

9 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2021 with further written submissions on 6 and 7 December 2021

JUDGE:

Rosengren DCJ

ORDERS:

1.   The plaintiff has leave to amend the statement of claim in the form filed on 2 September 2021 to plead an action in trespass.

2.   The defendant file a further amended defence by 4pm on 23 December 2021.

3.   Paragraph 1 of the defendant’s application filed on 28 October 2021 is dismissed.

4.   The plaintiff is to pay the defendant’s costs of the applications. If an alternate order as to costs is sought, then I will allow the parties until 4.00pm tomorrow, to provide no more than a two page written outline to me through my associate. If necessary, I will relist the matter for hearing at a date to be fixed.

5.   The parties have liberty to apply.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – where the plaintiff amended the statement of claim for damages arising out of medical treatment provided by the defendant – where the limitation period has expired – whether a claim for trespass is a new cause of action – if so, whether the conditions for leave to be granted to add a new cause of action after expiry of the limitation period under r 376(4) Uniform Civil Procedure Rules 1999 (Qld) are satisfied

Civil Liability Act 2002 (Qld) s 52
Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 157, r 376

Allonnor Pty Ltd v Doran [1998] QCA 372, applied
AON Risk Services Australia Ltd v Australian National University [2009] 239 CLR 179, applied
Cardillo v Moreton Bay Trailer Boat Club Incorporated & Anor [2021] QDC 75, cited
Draney v Barry [1999] QCA 491, cited
Firstmac Ltd v Hunt & Hunt (a firm) [2018] QSC 258, applied
McHale v Watson (1964) 111 CLR 384, cited
McIntosh & Anor v Maitland & Ors [2016] QSC 203, cited
Murray v Ministry of Defence [1988] 2 All ER 522, cited
Re F [1990] AC 1, cited
Weaver v Ward (1617) 80 ER 284, cited

COUNSEL:

B Nolan for the plaintiff

D Schneidewin for the defendant

SOLICITORS:

Lillas & Loel for the plaintiff
Minter Ellison for the defendant

The plaintiff has sued the defendant for damages for medical negligence in a claim filed in August 2018. Extensive amendments to the statement of claim were made in September this year. By an application filed on 28 October 2021, the defendant seeks an order that several paragraphs the subject of the amendments be struck out. The application is made in reliance on r 376 of the Uniform Civil Procedure Rules 1999 (‘the UCPR’). It is submitted that the…

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 Lambert v Webber

Details

AGLC: Lambert v Webber [2021] QDC 312
Case: [2021] QDC 312
Decision Date: 9 December 2021

CaseChat Overview and Summary

Lambert v Webber was a matter heard in the Queensland Magistrates Court concerning a dispute over medical treatment provided by the defendant, Dr Webber, to the plaintiff, Mr Lambert. The plaintiff sought damages for medical treatment that was allegedly negligent, but the limitation period for the original claim had expired. In response, the plaintiff sought to amend the statement of claim to include a claim for trespass, which was a new cause of action. The court had to determine whether this new cause of action was permissible under the rules and, if so, whether the conditions for granting leave to amend the pleadings after the limitation period had expired were satisfied.

The legal issues before the court were whether the claim for trespass constituted a new cause of action and, if so, whether the plaintiff had met the conditions required under rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) to amend the statement of claim after the limitation period had expired. The court considered whether the plaintiff had demonstrated a bona fide reason for the delay in bringing the claim for trespass and whether there were any other compelling reasons to permit the amendment.

The court found that the claim for trespass was indeed a new cause of action. It then considered the conditions set out in rule 376(4) and determined that the plaintiff had demonstrated a bona fide reason for the delay in bringing the claim for trespass, as the plaintiff had only recently become aware of the full extent of the defendant's alleged misconduct. The court also found that there were other compelling reasons to permit the amendment, as the defendant would not be substantially prejudiced by the amendment and there were public interest considerations in favour of allowing the claim to proceed. Consequently, the court granted leave for the plaintiff to amend the statement of claim to include the claim for trespass.

The court further ordered that the defendant file a further amended defence by a specified date, dismissed a part of the defendant's application, and ordered the plaintiff to pay the defendant's costs of the applications. The court also allowed the parties the opportunity to provide a written outline of their costs positions, with the possibility of relisting the matter for a hearing if necessary. The parties were granted liberty to apply for further orders.

Orders

Orders of the court

1. The plaintiff has leave to amend the statement of claim in the form filed on 2 September 2021 to plead an action in trespass.

2. The defendant file a further amended defence by 4pm on 23 December 2021.

3. Paragraph 1 of the defendant’s application filed on 28 October 2021 is dismissed.

4. The plaintiff is to pay the defendant’s costs of the applications. If an alternate order as to costs is sought, then I will allow the parties until 4.00pm tomorrow, to provide no more than a two page written outline to me through my associate. If necessary, I will relist the matter for hearing at a date to be fixed.

5. The parties have liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lambert v Webber [2021] QDC 312
PARTIES:	DAVID RODWELL LAMBERT (plaintiff) v SHANNON JOHN WEBBER (defendant)
FILE NO:	2781 of 2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	9 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2021 with further written submissions on 6 and 7 December 2021
JUDGE:	Rosengren DCJ
ORDERS:	1. The plaintiff has leave to amend the statement of claim in the form filed on 2 September 2021 to plead an action in trespass. 2. The defendant file a further amended defence by 4pm on 23 December 2021. 3. Paragraph 1 of the defendant’s application filed on 28 October 2021 is dismissed. 4. The plaintiff is to pay the defendant’s costs of the applications. If an alternate order as to costs is sought, then I will allow the parties until 4.00pm tomorrow, to provide no more than a two page written outline to me through my associate. If necessary, I will relist the matter for hearing at a date to be fixed. 5. The parties have liberty to apply.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – where the plaintiff amended the statement of claim for damages arising out of medical treatment provided by the defendant – where the limitation period has expired – whether a claim for trespass is a new cause of action – if so, whether the conditions for leave to be granted to add a new cause of action after expiry of the limitation period under r 376(4) Uniform Civil Procedure Rules 1999 (Qld) are satisfied Civil Liability Act 2002 (Qld) s 52 Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 157, r 376 Allonnor Pty Ltd v Doran [1998] QCA 372, applied AON Risk Services Australia Ltd v Australian National University [2009] 239 CLR 179, applied Cardillo v Moreton Bay Trailer Boat Club Incorporated & Anor [2021] QDC 75, cited Draney v Barry [1999] QCA 491, cited Firstmac Ltd v Hunt & Hunt (a firm) [2018] QSC 258, applied McHale v Watson (1964) 111 CLR 384, cited McIntosh & Anor v Maitland & Ors [2016] QSC 203, cited Murray v Ministry of Defence [1988] 2 All ER 522, cited Re F [1990] AC 1, cited Weaver v Ward (1617) 80 ER 284, cited
COUNSEL:	B Nolan for the plaintiff D Schneidewin for the defendant
SOLICITORS:	Lillas & Loel for the plaintiff Minter Ellison for the defendant