Lillicrap v Strange

[1993] QCA 364

IN THE COURT OF APPEAL	[1993] QCA 364
SUPREME COURT OF QUEENSLAND

Appeal No. 113 of 1993.

Brisbane
[Lillicrap v. Strange]

BETWEEN

GARY LILLICRAP

Appellant

and

GLENYS ALICE STRANGE

Respondent

____________________________________________________________

_____

Pincus J.A.
Ambrose J.
White J.
____________________________________________________________

_____

Judgment delivered 04/10/93

Judgment of the Court

____________________________________________________________

_____

NOTICE OF APPEAL STRUCK OUT.

LEAVE TO APPEAL REFUSED.

THE APPLICANT TO PAY THE RESPONDENT'S COSTS OF THE
PROCEEDINGS, TO BE TAXED.
____________________________________________________________

_____

CATCHWORDS:	PRACTICE - whether order of District Court judge granting extension of time within which to bring an action is a "final" order within the meaning of s.92(1) District Courts Act - whether leave to appeal required against the making of the extension order under s.92(2) District Courts Act - whether applicants could demonstrate that some important question of law or justice was involved.
Counsel:	Mr I. Hanger Q.C., with him Mr S Cooper for the appellant.
Mr K. Dorney Q.C., with him Mr P Land for the respondent.
Solicitors:	Flower & Hart for the appellant. Quinlan Miller & Treston, as town agents for Lee Turnbull & Co. for the respondent.
Hearing Date:	25 August 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 113 of 1993.

Brisbane

Before Pincus J.A.
Ambrose J.
White J.

[Lillicrap v. Strange]

BETWEEN

GARY LILLICRAP

Appellant

and

GLENYS ALICE STRANGE

Respondent

JUDGMENT OF THE COURT

Judgment delivered 04/10/93

The appellant has caused to be filed a notice of appeal
against a judgment of the District Court, given on 1 June
1993, whereby that Court extended time for the bringing of
an action by the respondent against the appellant until 3
March 1993. There is also a notice of motion seeking leave
to appeal. The District Court's order was made under s.
31(2) of the Limitation of Actions Act 1974; we do not
intend to set out s. 31, or the interpretation provision, s.
30.

Counsel for the appellant argued that such an order is one which founds an appeal as of right and submitted that authorities to the contrary should not be followed. The provision on which the appeal is based is s. 92 of the District Courts Act 1967, which reads in part as follows :

(1) Any party who is dissatisfied with the final judgment of a District Court, whether in its original or appellate jurisdiction -

(a) In an action or matter in which the sum sued for exceeds $10,000

...
may appeal to the Court of Appeal.

(2) Any party who is dissatisfied with a judgment of a District Court other than one hereinbefore mentioned in this section may by leave of the Court of Appeal or a Judge of Appeal appeal to the Court of Appeal.

Such leave may be granted upon such terms as to security for costs or otherwise as the Court of Appeal or a Judge of Appeal may impose, but such leave shall not be granted unless some important question of law or justice is involved.

As we understood the contention put on behalf of the appellant, the judgment from which it is sought to appeal is said to be a "final judgment of a District Court ... in an action or matter in which the sum sued for exceeds $10,000".

The words just quoted do not fit the nature of the proceedings brought in the District Court. They were begun by the filing of a notice of application foreshadowing that such an order as was made would be sought. The proceeding thus commenced is no doubt a "matter", but it is not one in which any sum is sued for. It does not appear that any of the other paragraphs of s. 92(1) covers the case. Therefore, as it seems to us, there is no right of appeal, whether or not the judgment of the District Court was "final". The point just discussed was not raised before us and we propose to deal with the arguments then advanced.

It was argued on behalf of the respondent that the judgment was not final because it did not "finally dispose of the rights of the parties": Hall v. Nominal Defendant (1966) 117 C.L.R. 423 at 439, Licul v. Corney (1976) 50 A.L.J.R. 439 at 444. It was also contended that, on this aspect of the matter, the Court should follow the views expressed in the Full Court of the Supreme Court in Meddings v. Council of the City of Gold Coast [1988] 1 Qd.R. 528 at 534 et seq, per McPherson J, as his Honour then was.

Counsel for the appellant said in effect that, accepting that if such an application as the present is refused, the refusal order is not final, the position is otherwise where the application is granted. The argument was in substance that, so far as the limitation point is concerned, being the only question in issue in the application made, the order is final. Emphasis was laid upon the fact that the application was not one in a suit.

It does not appear to us that the form of the proceeding can be conclusive, in deciding whether an order is final. We are of the view that, whether the application for an extension is granted or refused, the order is not final in the relevant sense. We have been influenced by the decision of the New South Wales Court of Appeal in Merton Enterprises Pty Ltd v. Nelson (1988) 13 N.S.W.L.R. 454. It was argued for the appellant that the decision in Merton is distinguishable on the ground of differences between the relevant New South Wales legislation and that with which this Court is concerned. We do not accept the validity of the suggested distinction; there are differences between the statute there considered and that with which we are concerned, but nevertheless the decision appears to us to be in point, and persuasive.

We therefore proceed on the basis that leave is necessary. It will have been observed that the statute requires that "some important question of law or justice" be involved. It never became very clear what the important question of law might be. At one stage it was suggested, we thought, that if the decision below was wrong for any reason then there was an important question of justice involved; but that was, sensibly, not pressed. It appeared to us that what was being put was that there is room for argument as to whether the judge below was right in his application of the statute to the facts, and that in determining that question there might well be involved the construction of the statute. But assuming that to be so, no important question of law necessarily emerges. We do not accept that any question of whether a set of facts found falls within a description in a statute must be an important question of law.

Further, it emerged during the argument that little more is in reality involved in the case than the proper inferences to be drawn from the evidence. To illustrate this, it is desirable to give a brief summary of the facts, although we find it unnecessary to set them out in full detail. The appellant, an ophthalmologist, saw the respondent, who was having difficulties in seeing out of her right eye, in July 1989. It then appeared to her that there was a hair growing across her line of sight. She was told that she had cataracts in both eyes. In August 1989 she again saw the appellant, who told her that she had slow- growing cataracts, but that she should not really worry about them until she felt she could no longer safely drive her car. About August 1991 her eyesight deteriorated markedly and she sought other advice. She had to wait for some time to see the eye doctor then chosen by her general practitioner and so it was not until November 1991 that she was told that, as is the fact, her vision was being affected by a tumor. That was surgically removed on 19 November 1991, and there seems to have followed a prolonged period of convalescence.

The respondent saw both her eye doctor and brain surgeon early in 1992 and was told that there did not seem to be any change in her eyesight since the operation. But according to the evidence it was not until April or May 1992 that the respondent "fully came to realise and understand" that her eyesight was not going to improve. Shortly after that it was ascertained that the tumor was growing again and radiation treatment was started.

It was suggested in the outline of argument that one important question of law was the following :

"Whether a complete lack of evidence as to a right of action can ever constitute sufficient material to discharge the onus cast upon an applicant under s. 31 of the Limitation of Actions Act 1974 ..."

As argued, that point became considerably narrower. It was said that the judge should not have found for the respondent, with respect to the evidence to establish a right of action required by s. 31(2)(b) of the Limitation of Actions Act, because it was not proved that the appellant should have diagnosed the tumor in 1989. Counsel for the respondent contended that there was good evidence that a mistaken diagnosis had then been made and reason to infer that this had damaged the respondent's chances of retaining her eyesight.

The second question of law identified in the outline of argument was stated as follows :

"Whether the additional information the respondent obtained in November 1992 from [the second eye doctor] as to the precise percentage loss of acuity of vision went to quantum, rather than constituting a separate material fact of a decisive character".

The primary judge said in effect that information obtained in November 1992 that there would be no further improvement following the treatment of the tumor and the extent of permanent damage done to the eyesight were material facts of a decisive character. The judge also held that it would have been desirable, before launching proceedings, to establish that earlier diagnosis of the condition would have made a difference to the applicant's chances of visual recovery; it was pointed out that the latter information seems to have first appeared in the neurosurgeon's report of 20 January 1993.

In our opinion these are not issues which could satisfy the test in s. 92(2) of the District Courts Act. Leaving aside cases in which the judge has plainly misapprehended or drawn wrong inferences from the facts - as to which we need say nothing here - the correctness of the primary judge's resolution of opposing contentions on essentially factual questions will not ordinarily raise a point warranting a grant of leave to appeal.

The orders will be:

1.    Notice of appeal struck out.

2. Leave to appeal refused.

3.   The applicant to pay the respondent's