Luck v Hunter

[2000] FCA 1715

FEDERAL COURT OF AUSTRALIA

Luck v Hunter [2000] FCA 1715

GAYE LUCK v DR ROSS B HUNTER & ORS

V 392 of 2000
V 393 of 2000
V 394 of 2000
V 541 of 2000

DOWSETT J
27 OCTOBER 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 392 of 2000 V 393 of 2000 V 394 of 2000 V 541 of 2000

BETWEEN:	GAYE LUCK APPLICANT
AND:	DR ROSS B HUNTER & ORS RESPONDENTS
JUDGE:	DOWSETT J
DATE OF ORDER:	27 OCTOBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The applicant’s notice of motion filed 24 October 2000 be dismissed.

2.        The applicant pay the costs of the respondents appearing today to oppose the motion.

3.Any respondent proposing to apply to strike out the statement of claim or any part thereof file and serve an appropriate motion on or before 10 November 2000

4.        The matter be listed for directions on 7 December 2000.

5.In the event that any party has served a notice of motion accordingly, it be listed for argument on 7 December 2000.

6.        The time for each respondent to file a defence be extended to a date to be fixed.

7.        Costs reserved save to the extent they have otherwise been disposed of.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 392 OF 2000

BETWEEN:

GAYE LUCK (FORMERLY KUPERMAN)
APPLICANT

AND:

DR ROSS B HUNTER
FIRST RESPONDENT

R B HUNTER (MEDICAL) PTY LTD
SECOND RESPONDENT

NOCDOC
THIRD RESPONDENT

DR D McALPINE
FOURTH RESPONDENT

P W KERRISK (TOWNSVILLE) PTY LTD
T/A AITKENVALE MEDICAL CENTRE
ACN 011 003 231
FIFTH RESPONDENT

DR PETER BUCHANAN
SIXTH RESPONDENT

DR HENRY LAU
SEVENTH RESPONDENT

CONSULTANT PATHOLOGISTS (TOWNSVILLE) PTY LTD
EIGHTH RESPONDENT

DR GRANT WITHEY
NINTH RESPONDENT

QUEENSLAND X-RAY SERVICES
BN 3332160
TENTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	27 OCTOBER 2000
PLACE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 393 OF 2000

BETWEEN:

GAYE LUCK (FORMERLY KUPERMAN)
APPLICANT

AND:

ROSLYN BROWNE
FIRST RESPONDENT

HONEYCOMBES TOWNSVILLE PTY LTD
ACN 050 419 068
SECOND RESPONDENT

SIMON HORNE
THIRD RESPONDENT

DEBBIE GILCHRIST
FOURTH RESPONDENT

COLIN BROWNE
FIFTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	27 OCTOBER 2000
PLACE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 394 OF 2000

BETWEEN:

GAYE LUCK APPLICANT

AND:

CSR LIMITED (BRADFORD INSULATION GROUP), CSR EXCELLENT DESIGN PTY LTD, BRADFORD INSULATION INDUSTRIES PTY LIMITED, B I (CONTRACTING) PTY LIMITED, BRADFORD INSULATION (SA) PTY LIMITED, CRS (GEOMATICS) PTY LTD, INSULCO PTY LTD/TASMAN INSULATION AUSTRALIA PTY LIMITED, ACI PTY LTD, ACI WORLDWIDE (PACIFIC) PTY LTD, ACI PINK SUPERBATTS, PETER JAMES HAYES, WATTLEFIELD PTY LTD, PYNEBOARD PTY LTD, AUSTRALIAN GYPSUM LTD, AUSTRALIAN GYPSUM INDUSTRIES LTD, PLASTERGLASS PTY LTD, STANDARD PLASTERGLASS PTY LTD, PILKINGTON (AUSTRALIA) PROPERTIES LIMITED, PILKINGTON ACI LIMITED, PILKINGTON ACI OPERATIONS PTY LTD, PILKINGTON AUSTRALASIA LIMITED, PILKINGTON (AUSTRALIA) LIMITED, OWENS CORNING AUSTRALIA PTY LIMITED, ACI FIBREGLASS/ACI INSULATION, ACI FIBREGLASS LIMITED/ACI INSULATION, INSULATION SOLUTIONS PTY LTD, ACI GLASS INSULATORS PROPRIETARY LIMITED, ACI SISALATION PTY LTD/SISALATION PTY LTD, ACI OPERATIONS PTY LTD, INSULFLUF AUSTRALIA PTY LTD, AMATEK LIMITED, ROCLA LIMITED, MR K G WIENEKE, MRS J WIENEKE, CEILFIX PTY LTD, CEILFIX PTY LIMITED, CEILFIX BUILDING SERVICES PTY LTD, COLIN CAMERON RESPONDENTS

JUDGE:	DOWSETT J
DATE:	27 OCTOBER 2000
PLACE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 541 OF 2000

BETWEEN:

GAYE LUCK
APPLICANT

AND:

TOWNSVILLE CITY COUNCIL
FIRST RESPONDENT

WOLF SETZINGER
SECOND RESPONDENT

MICHAEL COLLARD
THIRD RESPONDENT

GRANT STEEN
FOURTH RESPONDENT

STATE OF QUEENSLAND DEPARTMENT OF HEALTH
FIFTH RESPONDENT

STATE OF QUEENSLAND DEPARTMENT OF ENVIRONMENT
SIXTH RESPONDENT

CHRIS McNAMARA
SEVENTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	27 OCTOBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant has not appeared today although there seems to be no doubt that she is aware of the hearing.  Mr Simpson, her parish priest has sought to appear on her behalf.  I have not given leave because firstly, it seems inappropriate that a lay person appear and secondly, there is no evidence of his authority to act.

2. He indicated that the applicant has asked him to find out whether or not the matter might be stayed pending an application for special leave to appeal to the High Court against the order transferring the matter to the Brisbane Registry.  The applicant has also asked through Mr Simpson that this matter be stood over until she can appear in person as she has conscientious objections to appearing by video or by telephone.

3. I have indicated that as I consider the prospects of success of her application for special leave to appeal to be nil, I am not willing to entertain an application to stay the matter pending proceedings in the High Court.  I refuse that application.  As to her appearance, there seems to be no option other than video or telephone link, unless the applicant is willing to come to Brisbane for directions hearings.  I understand that she is not able to do that for financial reasons and therefore she must, in my view, use the electronic means which the Court has made available to her.  No basis is shown for her alleged conscientious belief concerning these means of communication, nor would it be practicable for the Court to give recognition to such an unusual belief.  In the circumstances, the matter must proceed in the absence of the applicant. 

4. There is a notice of motion filed on 24 October which seeks a substantial amount of relief, including an order that I disqualify myself because I am directly responsible for an act of torture against the applicant.  As the applicant does not appear to prosecute that motion, it is dismissed.  There is a motion that the hearing be vacated or adjourned.  No ground is demonstrated, and that is dismissed.

5. The applicant does not appear to prosecute the motion to join further respondents, and so that motion is dismissed.  The motion for leave to amend is not prosecuted.  It is dismissed.  The motion for transfer to Victoria is inconsistent with the decision of Weinberg J and that of the Full Court.  Although I could revisit the matter, it would only be proper for me to do so if changed circumstances were demonstrated.  That has not been done.  That motion is dismissed.

6. Paragraph 6 of the notice of motion makes no sense.  Paragraph 7 relates to pleadings which will be dealt with separately in any event.  Paragraph 8 relates to discovery.  I see no reason to address either par 7 or 8 in view of the absence of the applicant.  Similar comments relate to pars 9 and 10, 11, 12, 13 and 14.  In the circumstances all aspects of the motion are refused.

7. I order the applicant to pay the costs of the respondents appearing today to oppose the motion.

8. I further order that any respondent proposing to apply to strike out the statement of claim or any part thereof file and serve an appropriate motion on or before 10 November.  The matter will be listed for further directions on 7 December.  In the event that any party has served a notice of motion accordingly, it will be listed for argument on that day.  Extend the time for each respondent to file a defence to a date to be fixed.  Costs are reserved save to the extent that I have otherwise disposed of them.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            24 November 2000

V 392 of 2000

Counsel for the 1st , 2nd , 6th , 7th , 8th  and 9th  Respondents:	Mr D Boddice
Solicitor for the 1st, 2nd, 6th, 7th, 8th and 9th Respondents:	Tress, Cocks & Maddox
Counsel for the proposed 11th – 13th Respondents:	Mr Bowskill
Solicitors for the proposed 11th – 13th Respondents:	Minter Ellison
Counsel for the 5th Respondent:	Mr Traves
Solicitor for the 5th Respondent:	Boulton, Cleary & Kern
Date of Hearing:	27 October 2000
Date of Judgment:	27 October 2000

V 393 of 2000

Counsel for the 2nd Respondent:	Mr Shand
Solicitor for the 2nd Respondent:	Carter Newel
Date of Hearing:	27 October 2000
Date of Judgment:	27 October 2000

V 394 of 2000

Counsel for the Respondent:	There was no appearance.
Date of Hearing:	27 October 2000
Date of Judgment:	27 October 2000

V 541 of 2000

Counsel for the 1st, 2nd, 3rd and 4th Respondents:	Mr Murdoch
Solicitor for the 1st, 2nd, 3rd and 4th Respondents:	Mahonys
Date of Hearing:	27 October 2000
Date of Judgment:	27 October 2000