Lance Alder As Litigation Guardian for Trent Ashley Alder v Paul Khoo

[2012] HCASL 24

LANCE ALDER AS LITIGATION GUARDIAN FOR
TRENT ASHLEY ALDER
v
PAUL KHOO & ANOR
[2012] HCASL 24
B60/2011

1. The plaintiff, by his litigation guardian, who is not legally represented, commenced proceedings in the Supreme Court of Queensland against the first respondent, an obstetrician, and the second respondent, the State of Queensland.  The proceedings alleged that the first respondent was negligent in relation to the plaintiff's birth.  The plaintiff claims that as a result he suffered, inter alia, cerebral palsy.  The respondents contend that this is not so, but rather that he suffers from a genetic condition, Angelman's Syndrome. 

2. The plaintiff made an application to Dalton J to strike out those parts of the defence alleging that he had Angelman's Syndrome because, inter alia, there had been loss and destruction of evidence, a failure to make full disclosure pursuant to earlier orders, and in consequence prejudice to a fair trial.

3. Dalton J rejected the application.  She found that some records had been destroyed at a time when the second respondent was on notice the litigation might be commenced, and while the plaintiff was a minor.  But she found that the documents were not directly relevant to matters in issue, or were not within the relevant document retention policies, or had been innocently destroyed, or were not essential to the formation of expert opinions.  She also found that other undisclosed documents said to be in the second respondent's possession were not in the second respondent's possession.  The Court of Appeal of the Supreme Court of Queensland (Muir, Fraser and White JJA) dismissed the plaintiff's appeal.

4. The plaintiff applies to this Court for special leave to appeal.  The reasons for judgment of both Dalton J and the Court of Appeal are detailed, and are not satisfactorily challenged in the documents filed in support of that application.  There is no reason to doubt the correctness of the Court of Appeal's decision.

5. The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

   J.D. Heydon  V.M. Bell
   29 February 2012