Livett v Hertess - [2011] QDC 257

DISTRICT COURT OF QUEENSLAND

CITATION:

Livett v Hertess [2011] QDC 257

PARTIES:

CHERLYLL ANN LIVETT

(Applicant)

v

ISOLDE HERTESS

(Respondent)

FILE NO:

769/2010

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

25 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2010 and Supplementary Written Submissions.

JUDGE:

Tutt DCJ

ORDER:

1.   The application is dismissed;

2.   The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceeding beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that a material fact of a decisive character relating to the right of action was within her knowledge or means of knowledge more than one year prior to her commencing proceedings and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended.

Limitation of Actions Act 1974 (Qld) ss 11, 30, 31

Civil Liability Act 2003 (Qld) ss 11, 21

Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Castlemaine Perkins v. McPhee [1979] Qd R 469
Campbell & Anor. v. Bleakley [2007] QSC 351;
Dick v University of Queensland [1979] Qd R 469
Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234
Elbourne v Gibbs [2006] NSWCA 127
Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland
Hertess v Adams [2011] QCA 73
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
NF v. State of Queensland [2005] QCA 110
Opacic v Patane (1997) 1 Qd R 84
Queensland v Stephenson (2006) HCA 20; 226 CLR 197
Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549
Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283
Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431

COUNSEL:

Mullins G R for the applicant

Dalton SC, J H for the respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

Minter Ellison for the respondent

Introduction:

The plaintiff Cheryll Ann Livett (“the applicant”) applies to the court for the primary order “that the time commencement of proceedings claiming damages for personal injuries by the plaintiff be extended to 11 March 2010 pursuant to s 31(2) of the Limitation of Actions Act 1974 (“LAA”).[1]
[1]One application filed 10 June 2010.

The applicant filed her claim on 11 March 2010 naming as first defendant Isolde Hertess (“the respondent”) and second defendant Ramsay Health Care Australia Pty Ltd. A notice of discontinuance has since been filed in respect…

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 Livett v Hertess

Details

AGLC: Livett v Hertess [2011] QDC 257
Case: [2011] QDC 257
Decision Date: 25 August 2011

CaseChat Overview and Summary

Livett v Hertess involved a dispute between the applicant, Livett, and the respondent, Hertess, where Livett claimed that she suffered injuries following surgery performed by Hertess. The proceedings were commenced beyond the limitation period, and Livett sought an extension of the limitation period to allow her to proceed with the action. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the limitation period should be extended in light of the applicant's delay in bringing the proceedings and whether a material fact of a decisive character was within her knowledge or means of knowledge prior to the limitation period expiring.

The primary legal issue was whether the court should extend the limitation period for the applicant to commence her proceedings, given the delay and the contention that a material fact relating to her right of action was known to her more than one year prior to the proceedings being commenced. The respondent argued that allowing the extension would prejudice them due to the delay. The court had to consider whether the applicant had knowledge of a material fact of a decisive character that would have allowed her to commence proceedings within the limitation period and whether the delay would cause prejudice to the respondent.

The court found that Livett had knowledge of a material fact of a decisive character more than one year prior to the commencement of proceedings, which would have enabled her to initiate the action within the limitation period. Given that the respondent would be prejudiced by the delay, the court dismissed the application for an extension of the limitation period. The court further directed that the parties may make written submissions on the issue of costs within 28 days if they could not agree on the matter.

Orders

Orders of the court

1. The application is dismissed;

2. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.

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:	Livett v Hertess [2011] QDC 257
PARTIES:	CHERLYLL ANN LIVETT (Applicant) v ISOLDE HERTESS (Respondent)
FILE NO:	769/2010
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	25 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2010 and Supplementary Written Submissions.
JUDGE:	Tutt DCJ
ORDER:	1. The application is dismissed; 2. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceeding beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that a material fact of a decisive character relating to the right of action was within her knowledge or means of knowledge more than one year prior to her commencing proceedings and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended. Limitation of Actions Act 1974 (Qld) ss 11, 30, 31 Civil Liability Act 2003 (Qld) ss 11, 21 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Castlemaine Perkins v. McPhee [1979] Qd R 469 Campbell & Anor. v. Bleakley [2007] QSC 351; Dick v University of Queensland [1979] Qd R 469 Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234 Elbourne v Gibbs [2006] NSWCA 127 Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland Hertess v Adams [2011] QCA 73 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 NF v. State of Queensland [2005] QCA 110 Opacic v Patane (1997) 1 Qd R 84 Queensland v Stephenson (2006) HCA 20; 226 CLR 197 Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283 Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431
COUNSEL:	Mullins G R for the applicant Dalton SC, J H for the respondent
SOLICITORS:	Trilby Misso Lawyers for the applicant Minter Ellison for the respondent