Manasse v Shine Lawyers Pty Ltd - [2019] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Manasse v Shine Lawyers Pty Ltd [2019] QSC 123

PARTIES:

NATALIE ALEXANDRA MANASSE

(respondent/plaintiff)

v
SHINE LAWYERS PTY LTD (ABN 86 134 702 757)

(applicant/defendant)

FILE NO/S:

No S438/2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

16 May 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

12 April 2019

JUDGE:

Crow J

ORDER:

1. Application dismissed.

2. Costs reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – TIME AND PLACE – where the respondent alleges professional negligence against her former solicitors - where the respondent instituted proceedings against the applicant in the Central Registry at Rockhampton – where the applicant filed an application to transfer the proceeding from the Central Registry to Brisbane – where there is no connection to the central region in respect of the initial cause of action – where the respondent engaged solicitors residing in the central region – where the respondent intends to call expert witnesses from the central region – whether the proceeding should be transferred to Brisbane

Uniform Civil Procedure Rules 1999 (Qld) r 39, r 448, r 427
Evidence Act 1977 (Qld) s 39PB, s 39Y

National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155
Clark v Ernest Henry Mining Pty Ltd [2018] QSC 253

COUNSEL:

RC Morton for the applicant

S McNeil for the respondent

SOLICITORS:

McInnes Wilson for the applicant

Macrossan and Amiet for the respondent

Background

Ms Manasse, was a pedestrian who was struck by a bus along Sunshine Beach Road, Noosa Heads, on 21 March 2009. The motor vehicle was insured by QBE Insurance who admitted liability. Ms Manasse alleged that as a result of her accident she suffered an injury to her cervical and lumbar spines and a consequential psychiatric injury. Ms Manasse originally retained Law Essentials Pty Ltd to represent her in her personal injuries claim. Law Essentials lawyers “sold” Ms Manasse’s file to the applicant, Shine Lawyers Pty Ltd (Shine). Shine retained an experienced Brisbane barrister to represent Ms Manasse. The claim was settled at a mediation in Brisbane on 12 June 2012 for $150,000 plus standard costs.
On 8 June 2018 Ms Manasse brought proceedings in the Supreme Court at Rockhampton pursuing Shine for negligence, alleging that Shine advised Ms Manasse to accept the $150,000 settlement in circumstances where, had she been properly advised, she would have been advised not to accept QBE’s offer of $150,000 plus costs.
In addition to the general allegation of negligence by failure to properly advise Ms Manasse as to the value of her claim Ms Manasse also alleges that a failure of Shine to obtain a supportive psychiatric report, and a failure of Shine to have an MRI scan of 12 August 2009 independently assessed by a radiologist amounted to negligence.
With respect to the latter allegation of negligence (Paragraph 6 of the Statement of Claim), an MRI of Ms Manasse’s spine of 12 August 2009 was…

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.

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Details

Case: [2019] QSC 123
Decision Date: 16 May 2019

CaseChat Overview and Summary

In Manasse v Shine Lawyers Pty Ltd, the respondent instituted proceedings against her former solicitors, Shine Lawyers, for professional negligence in the Central Registry at Rockhampton. Shine Lawyers subsequently filed an application to transfer the proceeding from the Central Registry to Brisbane. The court was tasked with determining whether the proceeding should be transferred to Brisbane, given the lack of connection to the central region in respect of the initial cause of action. The respondent argued that she had engaged solicitors residing in the central region, and she intended to call expert witnesses from the central region.

The legal issues before the court centred around the appropriate venue for the trial, considering the availability and necessity of expert evidence being presented from the central region. The court had to consider whether the use of audio visual links or audio links would affect the court’s ability to assess the credibility or reliability of the experts’ evidence, as per section 39PB(4)(b) of the Evidence Act 1977 (Qld). Additionally, the court needed to determine if there were appropriate audio or audio visual facilities available in the Rockhampton court, and whether there was a submission by any party about the way in which the person should give evidence.

The court found that there was no compelling reason to transfer the proceedings to Brisbane. It was noted that there were appropriate facilities available in Rockhampton to allow experts to give evidence via audio visual or audio links. Furthermore, the court acknowledged that the necessity to show MRI scan images to the trial judge could not be adequately addressed via telephone. Consequently, the application to transfer the proceeding to Brisbane was dismissed. The court reserved costs.

Orders

Orders of the court

1. Application dismissed.

2. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 39PB of the Evidence Act 1977 (Qld) provides:“39PB Expert witnesses to give evidence by audio visual link or audio link(1)This section applies if a person is called to give evidence as an expert witness in the proceeding.(2)Subject to subsection (3) and any rules of the court, the person is to give the evidence to the court by audio visual link or audio link.(3)The court may, on its own initiative or on the application of a party to the proceeding, direct that the person is to give oral evidence to the court other than by audio visual link or audio link if the court is satisfied it is in the interests of justice to give the direction.(4)In deciding whether it is in the interests of justice to give a direction under subsection (3), the court may have regard to the following matters—(a)the nature and scope of the evidence the person is to give in the proceedings;(b)whether the use of audio link or audio visual link is likely to affect the court’s or a jury’s ability to assess the credibility or reliability of the person or the person’s evidence;(c)the availability of appropriate audio or audio visual facilities in the court to which the person is to give evidence;(d)any submission made to the court by the person or any party to the proceedings about the way in which the person should give evidence.(5)Subsection (4) does not limit the matters the court may have regard to in deciding whether it is in the interests of justice to make a direction under subsection (3).(6)The court may, at any time, vary or revoke a direction made under this section on its own initiative or on the application of a party to the proceeding.(7)The court must not give the person’s evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the person gave the evidence by audio visual link or audio link. Section 39Y of the Evidence Act 1977 (Qld) provides:“39Y Putting documents to a person at an external location(1)If in the course of examination of a person by audio visual link or audio link it is necessary to put a document to the person, the court may permit the document to be put to the person –(a)if the document is at the court location – by sending a copy of it to the external location in any way and the copy then put to the person; or(b)if the document is at the external location – by putting it to the person and then sending it to the court location in any way.(2)A document put to a person under subsection (1) is admissible as evidence without proof that the transmitted copy is a true copy of the relevant document.” In addition to the above, it is important to note that regardless of whether the trial proceeds in Brisbane or Rockhampton, directions will be made requiring experts to confer and produce a joint report setting out the matters upon which they agree and their reasons, and the matters upon which they disagree and their reasons for disagreement. Thus the scans and the interpretation of the scans are likely to be the subject of not only further specific reports but also a joint report. It is not currently possible to form any likely conclusions as to the nature and scope of the matters referred to in s 39PB(4)(a). Whilst there is no suggestion that the credibility of any expert is in issue, until the joint reports are prepared it is difficult to form any conclusion as to the likely ability to assess the “reliability” of the experts’ evidence as is required by s 39PB(4)(b). With respect to s 39PB(4)(c) there is available in Rockhampton appropriate audio visual facilities in the court to allow the experts to give evidence. With respect to s 39PB(4)(d) Shine submits that it is important to allow Shine to call a radiologist, Dr Challen, Professor David Morgan and Dr Wood, in person as witnesses as “it will be necessary to show to the trial judge what is on the MRI scan images. That cannot be done by telephone.”[4] [4] Paragraph 16 of Applicant’s Submissions.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Manasse v Shine Lawyers Pty Ltd [2019] QSC 123
PARTIES:	NATALIE ALEXANDRA MANASSE (respondent/plaintiff) v SHINE LAWYERS PTY LTD (ABN 86 134 702 757) (applicant/defendant)
FILE NO/S:	No S438/2018
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	16 May 2019
DELIVERED AT:	Rockhampton
HEARING DATE:	12 April 2019
JUDGE:	Crow J
ORDER:	1. Application dismissed. 2. Costs reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – TIME AND PLACE – where the respondent alleges professional negligence against her former solicitors - where the respondent instituted proceedings against the applicant in the Central Registry at Rockhampton – where the applicant filed an application to transfer the proceeding from the Central Registry to Brisbane – where there is no connection to the central region in respect of the initial cause of action – where the respondent engaged solicitors residing in the central region – where the respondent intends to call expert witnesses from the central region – whether the proceeding should be transferred to Brisbane Uniform Civil Procedure Rules 1999 (Qld) r 39, r 448, r 427 Evidence Act 1977 (Qld) s 39PB, s 39Y National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155 Clark v Ernest Henry Mining Pty Ltd [2018] QSC 253
COUNSEL:	RC Morton for the applicant S McNeil for the respondent
SOLICITORS:	McInnes Wilson for the applicant Macrossan and Amiet for the respondent